Judicial Rule-Making & the Separation of Powers in NH: the Need for Constitutional Reform

By: Hon. Robert J. Lynn1I. INTRODUCTION

The subject of this article is the role which the legislative and judicial branches of government should properly play in establishing procedural and evidentiary rules for New Hampshire courts. Like the constitutions of most states,2 the New Hampshire Constitution contains an explicit separation of powers clause, which requires that the three branches of government - legislative, executive and judicial - "ought to be kept as separate from, and independent of, each other, as the nature of a free government will admit . . . ."3 In 1978, the New Hampshire Constitution was amended to add part 2, article 73-a. This article provides:

The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law.

Over the last several years, a controversy has arisen concerning the legitimacy of article 73-a because of the fact that the last sentence, which indicates that rules adopted by the supreme court have the force and effect of law, was not specifically included in the voters' guide that was distributed prior to the November 1978 election at which the amendment was enacted by the electorate. However, as has been adequately explained by the Chief Justice of the New Hampshire Supreme Court,4 the attack on the amendment on this basis is lacking in substance. Contrary to the suggestion in one newspaper editorial,5 the New Hampshire Supreme Court did not take it upon itself to simply add the last sentence to article 73-a after it had been approved by the voters. The records of the 1974 Constitutional Convention, at which article 73-a was proposed, make it very clear that the last sentence, exactly as it appears in the constitution today, was included within the amendment recommended by the Convention delegates to the voters for their approval.6 Although it is true that the voters' guide did not specifically say that court rules would have the force and effect of law, the absence of such language was of no particular significance because this aspect of the amendment did not accomplish a change in existing law. Long before article 73-a was adopted, rules promulgated by New Hampshire's various courts were given the force and effect of law.7 Article 73-a did not change the legal status of court rules; it merely consolidated the rule-making authority in the supreme court, rather than leaving each level of court free to make its own separate rules, as had previously been the case.8

While the attack on the method by which article 73-a was adopted is little more than a tempest in a teapot, a much more troublesome problem results from a recent New Hampshire Supreme Court decision construing the extent of rule-making authority reposed in the judiciary under this article and the separation of powers clause of the New Hampshire Constitution. During the debate on proposed article 73-a at the 1974 Constitutional Convention, the following exchange occurred between Delegate Martin L. Gross and Delegate Arthur H. Nighswander, Chairman of the Judicial Department Committee:

Del. Gross: Is my understanding correct that this amendment, if adopted, would not deprive the Legislature of the right that it presently has to regulate court procedure by statute?

Del. Nighswander: I would think any power that they (sic) [the legislature] now have, they would still have.

Despite this strong indication of the Convention's assumption that adoption of article 73-a would not diminish the legislature's power to make laws regulating court practice and procedure, the court's decision in Opinion of the Justices (Prior Sexual Assault Evidence), 141 N.H. 562 (1997) (hereinafter "PSAE"), seems to have all but eliminated legislative authority in this area.

The thesis of this article is that in assigning to itself virtually exclusive authority to make rules of practice, procedure, and evidence for the state's courts, the New Hampshire Supreme Court has seriously skewed the balance of power among the branches of government. I first analyze the PSAE decision in detail. Next, I review the history and development of judicial rule-making at the federal level and in the various states, including New Hampshire. This is followed by a survey of the case law from the minority of states whose courts have declared "judicial supremacy" in rule-making. Using the results of this survey, I then demonstrate that, contrary to the conclusion reached by the PSAE court, a proper balance of power between the legislative and judicial branches requires that both be given authority to regulate court practice and procedure and the law of evidence, with the legislature retaining a preeminent role in the event of conflict. Finally, to implement this optimum system, I propose an amendment to article 73-a of the New Hampshire Constitution.

II. THE PSAE DECISION

In 1996, the New Hampshire Supreme Court was asked by the New Hampshire Senate to provide an advisory opinion9 on the constitutionality of House Bill (HB) 1549, which the senate then had under consideration. This bill proposed to amend New Hampshire's sexual assault statutes to create a rebuttable presumption that in criminal prosecutions for sexual assault and related offenses, and in civil suits for sexual assault, evidence of any other sexual assault committed by the defendant would be admissible in evidence at trial for any relevant purpose (including, but not limited to, establishing the defendant's motive, intent, the context of the assault in question, or the relationship of the parties) other than showing the defendant's character. Under the proposed legislation, such evidence could be excluded only if the trial court made a finding that the probative value of the evidence was substantially outweighed by the danger of unfair prejudice to the defendant.10

The two specific questions which the senate asked the supreme court to address were: (1) whether the proposed legislation would violate the separation of powers clause found in part 1, article 37 of the New Hampshire Constitution; and (2) whether the legislation would violate the judicial rule-making provision found in part 2, article 73-a of the constitution. The court held that HB 1549 would violate the separation of powers clause. Because of its affirmative answer to the first question, the court found it unnecessary to answer the second question. Nonetheless, the court's opinion cited article 73-a as one of the sources of its authority to make rules of practice and procedure,11 and the rationale of the decision leaves no room for doubt that, in the court's view, these two constitutional provisions, either alone or in combination, place final authority over procedural and evidentiary law within the judicial branch.

The court began its analysis by framing the issue before it as "whether the legislature's promulgation of the proposed statute falls within the exercise of `judicial powers.'"12 Noting that the main purpose of separating governmental powers is to protect the rights and freedoms of the people against a tyrannical accumulation of power by any one branch, the court explained that "the separation of powers doctrine complements the notion of checks and balances by institutionalizing a self-executing safeguard against the encroachment or aggrandizement of one branch at the expense of another."13 The court acknowledged that the doctrine has never been interpreted to require an absolute division of powers, or the "erection of impenetrable barriers between the branches of government."14 But the court made it clear that the line must be drawn at the point where one branch attempts to overrule another with respect to the latter's "essential operations." Referring specifically to the case at hand, the court stated: "if the legislature could overrule the courts in some of their essential operations, the judiciary `instead of being one of the three coordinate branches of the state government, would [be] rendered subservient to the Legislature in a fashion never contemplated by any.'"15 The question for the court, then, was whether the proposed legislation "would prevent the judiciary from accomplishing its constitutionally assigned functions."16

Proceeding to answer the question as thus framed, the court first observed that the purpose of HB 1549 was to modify the operation of New Hampshire Rule of Evidence 404(b), which governs the admissibility at trial of "crimes, wrongs or acts" other than those which are the subject of the charge or complaint at issue in the case. The court noted that Rule 404(b), as part of the New Hampshire Rules of Evidence, had been promulgated by the supreme court pursuant to its constitutional authority to regulate the practice and procedure of the judicial branch. This authority, said the court, was of ancient lineage, and derived both as an inherent incident of the judicial power and from its more recent explicit confirmation in the text of article 73-a.17 But merely because legislation conflicts with a court rule does not necessarily mean that the legislation violates the separation of powers doctrine; the court recognized that "the legislature has a limited appropriate role to act on court rules."18 Citing cases from a number of other jurisdictions,19 the court concluded that "the basic analysis applied to determine whether legislative action is appropriate on judicial rules involves the distinction between substance and procedure": procedure is "under the exclusive jurisdiction of the courts," while substance is a "legitimate subject" for the legislature.20

While acknowledging a fundamental problem with the above methodology - the distinction between substance and procedure "is not always well understood, and is sometimes vague and indistinct"21 - the court next considered a variety of tests which various courts and commentators have utilized in an effort to distinguish matters of substance from matters of procedure. Ultimately, the court settled upon the test which treats as "substantive"

those laws which have for their purpose to determine the rights and duties of the individual and to regulate his conduct and relation with the government and other individuals;

and treats as "procedural"

those laws which have for their purpose ... to prescribe machinery and methods to be employed in enforcing these positive provisions.22

Applying the above test, the court concluded that, for the most part,23 rules of evidence are procedural and therefore beyond the power of the legislature to change.24 Focusing particularly on Rule 404(b), the court described this rule as "a prime example of an internal procedural rule designed to effectuate a constitutional right" - the right to a fair trial. Because protecting the right to a fair trial is a "core function of the judiciary,"25 and because giving effect to HB 1459 would "abolish [Rule 404(b)'s] purpose and interfere with the judiciary's sound discretion in determining to what extent the rule serves its function in the circumstances of a particular case,"26 the court found the proposed legislation violative of the separation of powers doctrine.27

In considering the implications of the PSAE decision, an important starting point is to note what the case is not about. The opinion contains language suggesting that, in the view of the justices, the legislative effort to expand the admissibility of "similar act" evidence in sexual assault cases would likely run afoul of the due process rights of criminal defendants charged with such offenses. It must be emphasized, however, that the legislature never asked the court to decide whether HB 1549 violated due process,28 and the court did not base its decision on a finding that the bill infringed any individual constitutional rights of New Hampshire's citizens or residents. Indeed, had PSAE been grounded in a narrow holding that HB 1549 violated due process by creating an unacceptable risk that evidence bearing only on a defendant's criminal propensity would be improperly admitted at trial and would thereupon form the basis for an unjust conviction, the case would be quite unremarkable. One might agree or disagree with the proposition that admission of propensity evidence in sexual assault cases would violate the due process clause of part 1, article 15, but the rendering of a decision on this point would fall well within the traditional bounds of state constitutional jurisprudence.

By contrast, the broad language actually employed by the court in support of its separation of powers rationale reflects a marked expansion of the court's perception as to the extent of its own power. Two passages from the opinion are particularly telling in this regard. The first is the court's statement that distinguishing between substance and procedure is the analysis which must be used "to determine whether legislative action is appropriate on judicial rules."29 The second is the court's further observation that "the distinction between procedure, a subject under the exclusive jurisdiction of the courts, and substance, a legitimate subject of legislative action, `is not always well understood, and is sometimes vague and indistinct.'"30 As explained below, the historical record both in New Hampshire and elsewhere plainly shows that there had never been a serious question as to the power of the legislature to make rules governing court practice and procedure; the central point in debates over court rule-making generally concerned the wisdom of extending this power to the judiciary, not removing it from the legislature. Yet by the two quoted passages, the court has completely shifted the focus of the rule-making analysis. Instead of the substance-procedure dichotomy serving as a limitation on judicial power (i.e., by prohibiting the courts from making rules of substantive law) as had been understood by prior case law and by the drafters of article 73-a, it has now become a limitation on legislative power (by prohibiting the legislature from making procedural law).

The implications of PSAE's new paradigm for distinguishing that which is legislative from that which is judicial are hard to over-estimate. The breadth of the decision is perhaps best understood by focusing on the fact that the demarcation line PSAE establishes does not depend on the particular policy determination that may be reflected in a legislative enactment. Rather, once the court determines that something is "procedural," the entire subject matter is simply beyond the legislative bailiwick. Thus, for example, the court's holding in PSAE presumably would have been exactly the same if the legislature had attempted to modify Rule 404(b) in a manner directly opposite that proposed by HB 1549 (i.e., by tightening the rule so as to forbid the use of "other act" evidence under any circumstances). On PSAE's reasoning, such a legislative proposal would be found to "usurp the judicial function of making relevancy determinations . . . without regard for the particular facts or circumstances of a case"31 every bit as much as did HB 1549, and therefore would be struck down (unless, of course, the court chose to honor what the legislature had done as a matter of judicial grace).32

Another demonstration of the absence of limiting principles within the decision is the PSAE court's assertion that HB 1549 could be declared invalid because it interfered with an evidence rule (Rule 404(b)) designed to implement the right to a fair trial. But is not ensuring a fair trial the ultimate purpose of all the rules of evidence?33 By the same token, is not the same (or at least a very similar) goal - securing fairness in litigation - the fundamental objective of all the rules of the supreme, superior, district, and probate courts? Surely the answer to these questions must be "yes," and if that is the answer, then it is hard to see how any legislative modification of the rules of evidence or rules of procedure can be sustained in light of the PSAE holding.

The upshot of all this is that, through its PSAE decision, the supreme court has placed New Hampshire among the minority of states in which the legislature has been deprived of any meaningful role in regulating court practice and procedure. As a prelude to assessing the wisdom of this development, it is helpful to consider the historical backdrop against which it occurred.

III. THE HISTORY AND DEVELOPMENT OF JUDICIAL RULE-MAKING

In his seminal article34 on the subject, Dean Roscoe Pound of the Harvard Law School traced the development of rule-making in the common law courts of England through four stages. In the beginning such court "rules" as existed involved little more than a particular court's inclination to follow its own past practice or customs when addressing future cases of like kind. In the second stage, the courts' "customary" practices gradually evolved into more formalized rules of general applicability. The third stage involved Parliament's taking control of court procedure for the purpose of implementing "reforms" to the system.35 Finally, with passage of the Judicature Act of 1873,36 rule-making was largely returned to the judicial domain.37

It is generally agreed that in this country court procedures were under the control of state legislatures throughout most of the nineteenth century.38 Beginning with New York's enactment of the Field Code of Civil Procedure in 1848, legislative reform of the rigid common law forms of pleading and of the distinction between law and equity spread throughout the nation.39 Although Dean Pound, an ardent supporter of court control of rule-making, was fond of pointing out that "the first public action of the Supreme Court of the United States was to make a rule adopting the practice of the Court of King's Bench as the practice of that tribunal,"40 he also recognized that the long history of legislative action in this field made it difficult to argue that legislatures lacked power to control court practice and procedure.

It may be that today, after seventy-five years of codes and practice acts and prolific procedural legislation, we can't go so far as to pronounce such legislative interference with the operations of a coordinate department to be unconstitutional. Perhaps the ground is so far debatable that the courts could not have resisted legislative annexation of that domain. Today, possibly, we must concede that the legislature may enact codes of procedure and detailed practice acts. Equally, however, we should insist that the legislature ought not to do such things.41

In the 1920's, Pound and the American Bar Association spearheaded a new reform movement, the goal of which was to transfer the rule-making power from the legislatures to the courts. But the arguments offered in support of this transfer were not, in the main,42 grounded in constitutional separation of powers principles.43 Rather, they were based on practical considerations of sound public policy.44 As one commentator explained, the arguments "were addressed either to the legislature, where the final power was assumed to reside, or to the constitution-making or -amending authority, whose action was assumed to be necessary to make the reform in the face of a recalcitrant legislature."45

Four principal points were advanced in support of the superiority of judicial rule-making. First and foremost was the matter of efficiency. While acknowledging the rigidity and formalism of common law pleading which led to the codes of procedure, bar leaders and legal scholars of this era claimed that the legislative "fixes" had established a complex and esoteric system of pleading and practice that was even worse. Pound, for example, lamented that the short and simple Field Code soon gave way in New York to the Throop Code of 1886 with its "thousands of sections of inscrutable minutiae."46 It was argued that because courts are the institutions that must live with rules of practice and procedure on a day-to-day basis, they are not only the branch of government in the best position to assess how well the rules are working, but also are better suited than legislatures to implement needed changes quickly and incrementally.47 A second argument, which also touched upon the theme of efficiency, albeit from a different perspective, was that placing procedure under the control of the courts would consolidate the rule-making and rule-applying (i.e., interpreting) functions in the same branch, thus rendering the latter function more sure-footed and less likely to result in inter-branch conflict.48 Third, it was asserted that placing procedure in the more flexible hands of the courts would help to ensure that procedure remained, as it should be, subservient to substantive law,49 instead of serving as a trap for the unwary and promoting what Pound described as "the sporting theory of justice."50 Finally, there was the matter of accountability. Proponents of court-made rules asserted that since, in the eyes of the public, it is the judiciary that is held most responsible for the proper functioning of the courts, it made sense to place the authority to achieve this result in the same hands.51

The movement to grant courts rule-making authority proved highly successful. Today the Supreme Court of the United States and the highest courts of virtually all the states have been granted some form of rule-making authority. Perhaps the most significant single development in this history was the enactment by Congress in 1934 of the Rules Enabling Act,52 which led to the promulgation of the Federal Rules of Civil Procedure in 1938 and the Federal Rules of Criminal Procedure in 1946. The federal rules were "important not only in their own right, but also for their profound and immediate stimulating influence upon the procedural revisions throughout the states."53 As will be seen, however, some state courts have used the federal rule-making model as a spring board from which to claim a judicial power far broader than any the federal courts ever contemplated.

A. The Federal Rule-Making Model

Because the United States Constitution expressly grants to Congress power to establish a system of lower federal courts, as well as a measure of power to regulate the appellate jurisdiction of the Supreme Court,54 it has never been doubted that Congress also has the authority to establish rules of practice and procedure55 and rules of evidence56 for the federal court system. In the Rules Enabling Act, Congress delegated its rule-making power to the Supreme Court, but retained the authority to review the rules so adopted and to disapprove any which are not to its liking. To ensure that this delegation of authority is limited to matters of procedure, the Act specifically states the rules so adopted "shall not abridge, enlarge or modify any substantive rights."57

As modified by the Judicial Improvements and Access to Justice Act of 1988,58 the rule-making methodology in the federal system calls for procedural rules of general applicability59 to be proposed and developed by committees of lawyers and judges established by the Judicial Conference of the United States. Those rules (or amendments or modifications thereto) which make it through the committee process and are recommended by the Judicial Conference are submitted to the Supreme Court for its consideration.60 Rules which are approved by the Supreme Court must then be transmitted to Congress by May 1 of the year in which they are to become effective. Except with respect to evidentiary rules dealing with privileges, the rules become effective seven months later, on December 1, unless Congress acts to block them from taking effect.61 Any rule "creating, abolishing, or modifying an evidentiary privilege," cannot take effect unless Congress affirmatively enacts legislation approving it.62 Rules adopted pursuant to the foregoing procedures supersede any preexisting laws that are in conflict with them.63

Although Congress has generally accepted the Supreme Court's rule-making proposals,64 it has not hesitated to assert itself and take an active role in rule-making when it disagrees with the Supreme Court's recommendations. The most dramatic example of this occurred in the early 1970's, when the Supreme Court promulgated the Federal Rules of Evidence.65 These rules met with strong opposition in Congress, which initially passed legislation that barred the rules from taking effect in the absence of specific Congressional approval.66 After making significant modifications, Congress finally enacted the Federal Rules of Evidence by statute in 1975.67 A more recent example of Congressional leadership in rule-making is the enactment, over the objections of the Judicial Conference, of Rules 413-415 of the Federal Rules of Evidence.68

B. Rule-Making in New Hampshire

New Hampshire courts have exercised rule-making authority since colonial times.69 But until the PSAE case there was never any question that this "inherent" judicial power was subject to overriding legislative control. For example, in the early case of Cater v. McDaniel,70 the issue concerned the validity of a deposition taken pursuant to court order. After the defendant filed a motion to take the deposition of a material witness who was in declining health, the trial court held a hearing on the matter. At the hearing, the parties agreed upon a certain date and time for taking the deposition, although plaintiff maintained that the deposition should not be taken at all. The court overruled plaintiff's objection and ordered that the deposition be taken on the agreed date. The deposition was taken on that date with both parties in attendance. When the deposition was offered at trial, the plaintiff objected to its admission on the ground that he had not received proper notice. The trial court overruled the objection for seemingly obvious reasons: (1) plaintiff had been advised of the date and time of the deposition in open court at the prior hearing; and (2) plaintiff had in fact attended the deposition. Despite the compelling logic of the trial court's ruling, on appeal to the state's highest court,71 the decision was reversed because of the defendant's failure to comply with a statute that required "a notice in writing," "stating the day, hour and place of taking" the deposition "to be delivered to the adverse party" "a reasonable time before the taking." The court held:

The practice of taking depositions in New Hampshire has always been governed by the statutes on that subject from the first organization of the courts, and the courts have no authority to dispense with any of the requirements of the statute.72

The court adhered to this same reasoning in Deming v. Foster,73 where it considered the relationship between the same deposition statute at issue in Cater and a court rule which provided that "no notice to the adverse party of the taking of depositions shall be deemed sufficient unless served three days, exclusive of the day of service and of the day of caption, before the day on which they are to be taken."74 Citing a 1771 provincial statute, the court observed that it had "all the powers of the highest judicial tribunals, and may rightfully exercise any powers belonging to the superior courts of law of England."75 The court went on to explain that, both under the provincial statute and as a necessary incident of their jurisdiction, courts have the power to make both general rules (those governing all cases of the same class) and special rules (those governing a particular case).76 It was careful to add, however, that:

[N]o court here, or in England, ever claimed the power to dispense with or disregard any enactment of the legislature, passed in the due exercise of its constitutional powers.77

Still later, in 1890, Chief Justice Doe described the courts' rule-making powers in these terms in Ricker's Petition:78 "Independently of any statute, every court of record may make such rules for the transaction of its business as do not contravene the laws of the land."79

The above understanding, that rule-making was an inherent power of the courts but one that remained subject to legislative control and revision, held sway through a series of supreme court decisions spanning some 200 years of New Hampshire history under the constitution of 1784. In addition to the nineteenth century cases of Cater, Deming and Ricker, the principle was never questioned in a series of twentieth century cases which addressed the courts' rule-making powers, including LaCoss v. Lebanon,80Garabedian v. William Company,81 and Nassif Realty Corp. v. National Fire Ins. Co..82

As to the power of the judiciary to promulgate rules of evidence, the court's decision in In re Mundy83 is instructive. After discussing a variety of areas in which statutory exceptions to the hearsay rule have been recognized, the Mundy court concluded: "It is apparent from the above that the Legislature and even the courts may make valid exceptions to the hearsay rule."84 This language clearly shows that the court viewed the legislature as the branch of government which wielded primary authority to promulgate rules of evidence.85

It is true, of course, that all of the cases discussed above were decided prior to the adoption of the 1974 amendment which added article 73-a to the New Hampshire Constitution. But, as the colloquy between delegates cited earlier in this article demonstrates, the purpose of the amendment was to confirm the rule-making power of the courts and consolidate that power in the supreme court, not to diminish the law-making power of the legislature over matters of court practice, procedure and evidence. Furthermore, in any number of cases decided after the adoption of article 73-a but before PSAE, the court issued rulings based on procedural or evidentiary statutes without ever questioning the power of the legislature to enact such measures.86

The only post-article 73-a case which offers even a modicum of support for the PSAE decision is State v. LaFrance,87 and the unique nature of the legislative action at issue in that case renders it far too slender a reed upon which to base the broad holding of PSAE. LaFrance was the infamous "guns in the courtroom" case, in which the supreme court struck down on separation of powers grounds a statute which provided that "[n]otwithstanding any other rule, regulation or order to the contrary, law enforcement officers shall be permitted to wear firearms in any courtroom in the state."88 Although the LaFrance decision contained some broad language about the power of the judiciary to "control the courtroom," this language cannot be divorced from the context in which it was used.89 The "control of the courtroom" which the court was concerned with in LaFrance was physical control, that is, the power to regulate the "conduct of [trial] participants, the actions of officers of the court and the environment of the court."90 As authority for its LaFrance decision, the court relied heavily on cases holding that the power to punish for contempt is an inherent attribute of a judicial tribunal which cannot be removed or limited by the legislature.91 Though the court did not find that the presence of armed police officers in the courts of justice was inherently disruptive, or deprived criminal defendants of their right to a fair trial,92 it seems clear from the citation of State v. Whippie93 that the LaFrance court regarded the specter of the legislature empowering officers of the executive to carry symbols of force into the state's courtrooms over the objection of the presiding judge as fundamentally at odds with the concept of an independent and impartial judiciary.94 Obviously, nothing remotely approaching this kind of symbolic "show of force"95 against the judiciary is involved in the promulgation by the legislature of procedural or evidentiary law.

C. Rule-Making in Other States

Unlike the federal system, where judicial rule-making is entirely dependent upon Congressional authorization, New Hampshire is one of 28 states96 whose constitutions explicitly grant to their supreme courts (and sometimes to lower courts also) power to make rules of practice and procedure.97 However, in six of these states the constitutional provision in question specifically indicates that the rules so adopted may not be in conflict with statutory law,98 and in another 11 of these states the legislature retains the power to change or repeal any rule with which it disagrees.99 A 29th state, California, grants the rule-making power to a judicial council composed of judges of each level of the state's courts, as well as representatives of the bar and the legislature.100

In an additional 15 states, judicial rule-making authority has been found to exist, independent of statutory delegation, based either upon the separation of powers clause of the state constitution, a constitutional provision granting the supreme court general superintending authority over all courts, the doctrine of inherent authority, or some combination of the foregoing.101

Courts in the remaining six states appear not to have specifically addressed the issue of whether they possess rule-making power independent of legislative authorization, although in each of these states the legislature has delegated such authority.102

Significantly, among the 44 states where some measure of independent judicial power to make rules of practice and procedure has been recognized, in only 18 states, now including New Hampshire, have the courts expanded103 this power to the point where it either (1) operates to the exclusion of legislative power or (2) is held to trump conflicting legislative enactments.104 Even more significant is the fact that, in addition to New Hampshire, only in Arizona,105 Arkansas,106 Indiana,107 Mississippi,108 New Mexico109 and North Dakota110 has it been held that judicial supremacy extends to the making of evidentiary rules. The next section of this article examines in more detail the case law from states which, in one form or another, subscribe to the view of judicial supremacy in rule-making.

IV. THE CASE LAW SUPPORTING JUDICIAL SUPREMACY IN RULE-MAKING

The primary decisional support for the view that procedural rule-making is an exclusively judicial function can be traced to the controversial opinion of the New Jersey Supreme Court in Winberry v. Salisbury.111 The case involved a conflict between a court-made rule and a statute concerning the time within which an appeal had to be taken: the rule set the time limit at 45 days after a final judgment by the trial court, whereas the statute established a one year time limit. The rule-making provision of the then-recently adopted New Jersey Constitution of 1947 provided: "The Supreme Court shall make rules governing the administration of all courts in the State and, subject to law, the practice and procedure in all such courts."112 In a case decided only a few months before Winberry, the court had held that the rules it promulgated pursuant to the new constitutional provision superseded pre-existing statutes.113 Consequently, because the statute at issue in Winberry also predated the new rules, the court could have decided the case based entirely on its own recent precedent and without any need to address the question of whether "subject to law" meant subject to future legislation enacted after the promulgation of a court rule.114 Nonetheless, the Winberry court went out of its way to reach this issue;115 and, despite very compelling evidence that the drafters of the constitution did indeed intend to make court rules subject to overriding legislation, the court "held"116 to the contrary:

the phrase "subject to law" cannot be taken to mean subject to legislation. . . . The only interpretation of "subject to law" that will not defeat the objective of the people to establish an integrated judicial system and which will at the same time give rational significance to the phrase is to construe it as the equivalent of substantive law as distinguished from pleading and practice. . . . The phrase "subject to law" . . . thus serves as a continuous reminder that the rule-making power as to practice and procedure must not invade the field of substantive law as such. While the courts necessarily make new substantive law through the decision of specific cases coming before them, they are not to make substantive law wholesale through the exercise of rule-making power.117

In a thoughtful and cogent concurring opinion, Justice Case sharply disagreed with the majority's conclusion.118 Beyond noting the obvious facts that judicial rule-making had historically been subject to legislative override and that there was no evidence the constitutional convention desired to change this system,119 he pointed out three fundamental flaws in the majority's reasoning. First, the placement of the phrase "subject to law" within the sentence in which it is contained clearly evinced an intent on the part of the drafters to draw a distinction between rules of administration120 and rules of practice and procedure: as to the former, the supreme court's rule-making authority was to be absolute; but as to the latter, it was to be conditional and subject to legislative change.121 Second, if sentence structure alone were not enough to dispel any doubt on this score, the report of the convention's judiciary committee, which proposed the provision, specifically stated that the supreme court was to be given "the power to make rules for administration, practice and procedure in all courts, subject to the overriding power of the Legislature with respect to practice and procedure."122Third, any number of other provisions of the newly-enacted constitution used the word "law" in a context in which it undeniably meant "statutory law," thus making it implausible that the drafters intended the same word to have a substantially different meaning in the single provision in question.123 In sum, it is hard to conclude other than that the Winberry court accomplished what amounted to a judicially-imposed amendment to the New Jersey Constitution by, in effect, adding the adjective "substantive" before the noun "law" in the phrase "subject to law."

Despite its doubtful analytical underpinnings, Winberry was hailed by some influential commentators as the first decision in which a state supreme court had declared its "absolute independence of the legislature in the realm of procedure."124 Although the decision also sparked scholarly criticism,125 there is no doubt that it served as a catalyst which led other courts also to declare their "procedural independence" from the legislature. Review of a sampling of cases from these jurisdictions will demonstrate just how far some courts have gone in removing from legislative competence broad areas of public policy under the rubric that they were merely controlling matters of "procedure."126

Notwithstanding the Winberry majority's seeming recognition that the power to make rules of evidence must remain subject to ultimate control by the legislature,127 in Ammerman v. Hubbard Broadcasting, Inc.,128 the New Mexico Supreme Court struck down a statute which provided journalists with a qualified privilege against disclosing their sources of information.129 The court held that rules of evidence "are very largely, if not entirely, procedural,"130 and that the statute was invalid because it conflicted with the rules of evidence promulgated by the court, which did not recognize a journalist's privilege.131

A similar result was reached by the Arkansas Supreme Court in State v. Sypult.132 In that case, the Arkansas legislature had enacted a statute which provided that certain privileges established under the rules of evidence promulgated by the court, including the physician- and psychotherapist-patient privilege, "shall not constitute grounds for excluding evidence at any proceeding regarding child abuse, sexual abuse, or neglect of a child or the cause thereof." The court acknowledged the legitimacy of the legislative interest - protection of child abuse victims - which spawned the statute, and also conceded that in prior decisions it had held that deference to the legislature was called for where a statute animated by public policy conflicted with a court rule.133 However, professing fear that following its prior precedents would "open the door to total abrogation of the rules of evidence and procedure we deem vital to the interests and policies inherent in the judicial process,"134 the court adopted a new test: henceforth it would defer to the legislature "only to the extent that the conflicting court rule's primary purpose and effectiveness are not compromised; otherwise [the court] rules remain supreme."135 Applying the newly formulated test to the case at hand, the court held that in the criminal trial of the defendant, the State could elicit evidence of the fact that the defendant had sought counseling for sexual abuse and that a report had been made to the proper authorities. However, the State could not compel disclosure of confidential statements made by the defendant to his doctors or counsellors, as to do so would "completely abolish the policy and purpose behind the [court-made] rule."136

Two cases from Idaho are noteworthy. In State v. McCoy,137 the Idaho Supreme Court struck down a statute which established a mandatory ten day jail sentence for persons convicted of driving while intoxicated, on the ground that it unconstitutionally interfered with the inherent authority of the courts to issue withheld judgments or suspended sentences. It took an amendment to the Idaho Constitution to overrule McCoy and reestablish the authority of the legislature to set mandatory minimum sentences.138 Thereafter, in State v. Currington,139 the court held that a statute which disallowed bail pending appeal to persons who had been sentenced to more than five years imprisonment was invalid because it conflicted with a court rule that gave the trial and appellate courts discretion to allow bail. The three justice majority acknowledged that there was no constitutional right to bail after conviction, but, relying on a Washington case, held that post-conviction bail was procedural in nature since it "relates to the manner of ensuring that the alleged offense will be heard by the court."140

Several courts have invalidated on separation of powers grounds statutes aimed at insuring fairness in the litigation process. In State v. Clemente,141 for example, a bare majority of the Connecticut Supreme Court struck down a statute which mandated that the prosecution in criminal cases turn over to the defendant prior statements of State witnesses after the witnesses completed testifying on direct examination.142 Although the statute did not conflict with any court rule specifically dealing with this subject, the court nonetheless held that regulation of discovery was a matter exclusively within the province of the judicial branch and that the statute therefore was unconstitutional.143 In Johnson v. Goldman,144 the Nevada Supreme Court invalidated a statute which allowed any party to a civil action to exercise a peremptory challenge so as to disqualify a judge from hearing the case without any showing of bias.145People v. Joseph,146 dealt with a statute that required all post-conviction proceedings to be conducted before a judge who was not involved in the original proceeding that resulted in conviction. The Illinois Supreme Court declared the statute invalid as an unconstitutional infringement on judicial authority. While conceding that the legislature could take some actions which affect judicial administration in a "peripheral" way, the court found that this statute unduly encroached on the "judicial power" and conflicted with a court rule which gave the chief judge of each circuit court authority to provide for the assignment of judges "free from any express legislative limitations."147

Nowhere has the assertion of judicial supremacy over procedure been pushed farther than in the Commonwealth of Pennsylvania. The Pennsylvania Constitution grants that state's supreme court power to "prescribe general rules governing practice, procedure and the conduct of all courts," provided "such rules are consistent with [the] Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant . . . ." It also provides that "[a]ll laws shall be suspended to the extent they are inconsistent with the rules prescribed under these provisions."148 In Commonwealth v. Wharton149 and Commonwealth v. Sorrell,150 the Pennsylvania Supreme Court dealt with a conflict between the rules of criminal procedure which it had promulgated and a Pennsylvania statute, both of which addressed the availability of non-jury trials in criminal cases. As originally adopted, the court rule followed the terms of a pre-existing statute, which gave the defendant the right to waive jury trial if both the trial court and the prosecutor consented. The supreme court later amended the rule to delete the requirement of prosecutorial consent. The legislature responded by enacting a new statute, which gave the prosecution the right to demand a jury trial. The issue before the court in Wharton was whether the new statute was substantive or procedural. The court split 3-3 on this issue, thereby affirming the lower court's determination that the statute was procedural and thus was suspended by the rule. In support of the view that the right to a jury trial was "procedural," Justice Roberts' opinion made the point that the determination of substance versus procedure does not depend on the importance of the right at issue. Conceding that trial by jury is important, he argued that "[m]any of the most important rights guaranteed by the Constitution are rights of procedure without which the substantive rights of life, liberty and property would have little meaning."151 He then cited a variety of decisions of the United States Supreme Court which refer to trial by jury as a procedural right of the accused.152 The dissenting justices responded by citing numerous federal and state court decisions which describe trial by jury as a substantive right.153 The dissenters argued that the statute had conferred this substantive right on the Commonwealth (just as the state and federal constitutions confer the right on the defendant), and that the court had no authority to rescind it.154

Because no definitive decision had been rendered in Wharton, the supreme court addressed the same issue a year later in Sorrell. This time a 4-3 majority found the statute procedural and therefore an unconstitutional infringement on the court's rule-making authority.155 In his strongly worded Sorrell dissent, Justice McDermott protested that "[t]he right to trial by jury is a fundamental, elemental right that has always inhered in the people as well as the accused," and he argued that "nowhere [in the state constitution] had [the people] empower[ed] this Court to alter" that right.156

The two most troubling Pennsylvania decisions involve instances wherein the supreme court unilaterally "suspended" statutes duly enacted by the Pennsylvania legislature despite the absence of any legally recognized form of challenge to the validity of the statutes. In 1978, the Pennsylvania General Assembly amended the state's Open Meeting Law so as to extend its coverage to the rule-making functions (but not the adjudicatory functions) of the Pennsylvania courts. The effect of the amendment was to require the court system to give public notice of its rule-making meetings and to conduct such meetings in a forum that was open to the public. No person properly before the court had questioned the statute's validity. Nonetheless, the supreme court responded by issuing a "letter of address" directed to the governor, the president of the senate, and the speaker of the house. In the letter, reported as In re Pa.C.S. § 1703,157 the court declared the statute invalid and simply "suspended" its operation.158 Although the court claimed that its action did not violate "firm [Pennsylvania] precedent against rendering of advisory opinions,"159 there is, to say the least, an "obvious tension between this statement and the traditional definition of an advisory opinion."160 Because there were no adverse parties to make the case for or against the statute, the letter of address merely formulated those arguments which the court thought might be raised against the statute, and then summarily refuted such arguments.161 The court found that article V, § 10(c) of the constitution was intended to give the supreme court exclusive power over rule-making (not merely concurrent jurisdiction with the legislature),162 and that this exclusive power extended not only to the "prescribing" of rules but also to the determination of "how rules are prescribed."163 The court characterized the statute as one that "injects the General Assembly in a pervasive and insistent fashion into what the Constitution has explicitly established as a judicial function,"164 but it did not explain how or why this is so. In particular, the court made no effort to show in any concrete fashion how the mere requirement that the court carry out its rule-making responsibilities in a public setting would threaten the independence of the judiciary.165

The Pennsylvania court followed essentially the same procedure in 1997, in "suspending" the state's Capital Unitary Review Act (CURA).166 In 1995, in an effort to create an orderly process to implement the death penalty, the Pennsylvania legislature passed the CURA by overwhelming margins in both houses.167 The legislation established a detailed procedure by which the post-trial phase of a capital case was to be handled by the courts. The most significant change from the pre-existing practice under the rules promulgated by the supreme court was the creation of a bifurcated, but simultaneous, process at the trial court level for handling post-trial motions and collateral attack proceedings relating to the conviction and sentence. The CURA provided that the trial court's judgment in the criminal case would become final so as to permit an appeal only after the trial court had ruled upon both (1) the post-trial motions in that case and (2) any collateral relief petition filed by the defendant. The statute also specified that both the direct appeal and the collateral appeal were to occur simultaneously in a single appellate proceeding. This unitary procedure was inconsistent with the practice under the court rules, which envisioned that post-conviction collateral review proceedings would be initiated subsequent to the defendant's exhaustion of his direct appeal rights. In light of this conflict, on August 11, 1997, the supreme court issued an order suspending the CURA.168 Once again, this order was not the final product of an appeal wherein the validity of the statute had been challenged. Rather, the order was issued by the court on its own initiative, without the benefit of any prior adversarial proceedings.

Subsequently, the Attorney General of Pennsylvania did file a petition for reconsideration of the suspension order. In its opinion denying this motion, In re Suspension of Cap. Unitary Rev. Act,169 the court rejected as a tautology the state's argument that the CURA created a "preappeal" collateral review process, and therefore did not conflict with the court rules, which addressed only post-appeal collateral review.170 Because the CURA directly conflicted with the court's procedural rules, the court held that it was duty bound to suspend the statute and "could not inquire at all into the wisdom of CURA as a policy matter."171 Interestingly, after making this statement, the court then proceeded to explain that the motivation for the CURA - the inordinate delay between imposition and carrying out of death sentences - had resulted not from the sequential timing of direct and collateral review proceedings mandated by the court rules, but from the absence of statutes establishing time limits for the governor's issuance of death warrants and for the filing of collateral review petitions. Noting that other recent statutory changes had corrected these deficiencies, the court suggested that, in its view, such changes would be sufficient to eliminate the problem of undue delay in carrying out death sentences.172

While it is true that article V, § 10(c) provides for the suspension of all laws that are inconsistent with court rules regulating practice and procedure, it is hard to believe that the citizens of Pennsylvania anticipated that they were empowering their supreme court to suspend laws outside of the context of a "case or controversy" in which the court's jurisdiction was properly invoked. Yet, as the Pa.C.S. § 1703 and CURA suspension orders demonstrate, when invoking its authority under § 10(c), the Pennsylvania Supreme Court has not regarded itself as constrained by principles such as standing, ripeness, the existence of adverse parties, etc., which have traditionally served as limitations on the exercise of judicial power. As the Supreme Court of the United States has repeatedly recognized,173 these principles are more than pesky niceties; they serve important separation of powers goals in themselves, by ensuring that the judiciary is limited to functioning in a reactive rather than a proactive fashion and that the courts bring their enormous compulsory powers to bear only when there is a real need to do so. By dispensing with these limitations, it can be argued that, in the area of procedural law at least, the Pennsylvania Supreme Court is no longer simply a judicial tribunal. Instead it has assumed a role somewhat analogous to Randolph's proposed Council of Revision174 - a body which stands watch over the other branches of government and is prepared at any moment to "correct" their errant ways. This departure from settled notions of the role of the judiciary led one commentator to conclude that the Pennsylvania Supreme Court has caused the disintegration of co-equality among the branches of government in that state,175 and spurred another commentator to proclaim that the Pennsylvania Supreme Court appears to have "greater power than any other state supreme court in the country."1, 76

The one bright spot among the states whose courts have asserted judicial supremacy over rule-making is the recent decision of the Michigan Supreme Court in McDougall v. Schanz.177 In this case, the court considered a conflict between a Michigan statute and a rule of evidence promulgated by the supreme court. Rule 702 of the Michigan Rules of Evidence is modeled after the federal evidence rule bearing the same number; it allows the admission of expert testimony if the trial court determines that the expert is qualified on the basis of "knowledge, skill, experience, training, or education." The statute establishes more rigorous requirements for the admission of expert testimony in certain medical malpractice cases. Specifically, the statute provides that in a malpractice action against a medical specialist, an expert witness cannot offer testimony on the appropriate standard of care unless the witness (1) is licensed to practice medicine, osteopathic medicine or dentistry, (2) specializes (or did specialize at the time of the occurrence) in the same or a related specialty as the defendant, and (3) devotes (or did devote at the time of the occurrence) a substantial portion of his or her professional time either to active practice in the specialty or to instruction of students in the specialty at an accredited professional school.178

The pertinent provision of the Michigan Constitution states, "The supreme court shall by general rules establish, modify, amend and simplify the practice and procedure in all courts of this state;"179 and the supreme court had long held that this section gave the court the exclusive power to enact and amend rules of practice and procedure.180 The issue before the court in McDougall, therefore, was whether the expert witness statute dealt with a matter of substance or procedure. In a number of prior decisions, the court had held that "all matters relating to the admission of evidence" were procedural and thus within the exclusive control of the judiciary.181 However, recognizing that its prior decisions "failed to consider the constitutionally required distinction between `practice and procedure' and substantive law and thus overstated the reach of our rule-making authority,"182 the McDougall court overruled these prior cases.183 In their stead, the court adopted the following test: "a statutory rule of evidence violates [the Michigan Constitution] only when no clear legislative policy reflecting considerations other than judicial dispatch of litigation can be identified. . . ."184 Applying this new test to the case before it, the supreme court held that the statute restricting the admission of expert testimony in malpractice cases was substantive because:

[it] reflects a careful legislative balancing of policy considerations about the importance of the medical profession to the people of Michigan, the economic viability of medical specialists, the social costs of "defensive medicine," the availability and affordability of medical care and health insurance, the allocation of risks, the costs of malpractice insurance, and manifold other factors - all matters well beyond the competence of the judiciary to reevaluate as justiciable issues.185

The dissenting opinion in McDougall acknowledged that the statute in question reflected a deliberate policy determination by the legislature, but sharply disagreed with the majority's conclusion that this should be the criteria for distinguishing between substance and procedure. "[The majority] fails to acknowledge that policy decisions also play a role in the evidentiary rules of this Court, and that this Court is not only the best equipped province for such rule making, but also the constitutionally recognized one."186 The dissent also professed its fear that "the majority has invited a [legislative] stampede over a fence created by our constitution's framers."187 To the latter concern, the majority had a poignant response:

[Despite] the dissent's apparent anxiety about our supposed lack of fidelity to the protection of "judicial turf," we merely note that it is ultimately this Court that will determine in each instance where the substance/procedure line must be drawn.188

This brief sampling of decisions from states in which the judiciary holds supreme power over rule-making highlights two important points.189 First, as virtually all courts and commentators concede, there is not a clear distinction between that law which is substantive and that law which is procedural. Although, in each of the cases discussed in this section, the statute under consideration could be viewed as "procedural," in the sense that it did not create a crime or civil wrong, or recognize a defense to liability, or establish remedies or penalties for proscribed conduct, still each statute also reflects a legislative resolution of competing policy alternatives. In Ammerman, for example, the legislature made a deliberate determination that the value to society of protecting the free flow of information to the news media outweighed the interest of litigants and others in obtaining unrestricted access to the media's sources of information, and required the recognition of a qualified news gatherer's privilege; in Joseph, the legislature determined that a habeas corpus petitioner's interest in obtaining a fresh judicial perspective on the fairness of his conviction outweighed the judiciary's interest in efficiency and avoiding duplication of effort, and required that post-conviction proceedings take place before a judge other than the one who had presided at the original trial; and in Wharton and Sorrell, the legislature determined that the public interest in avoiding judge shopping and guarding against judges with anti-prosecution bias outweighed the judiciary's interest in reducing the number of jury trials, and required that the State be given the same right as the defendant to insist on a trial by jury. Analogous determinations of public policy were made by the legislatures in each of the other cases discussed in this section. Yet, except for the recently narrowed definition of procedure adopted in Michigan, in each case the courts were able to substitute their own resolution of the policy question for that reached by the elected representatives of the people by characterizing the issue as one of "procedure."

Of course, it is true that the line between substance and procedure is just as elusive in the federal court system and in the majority of states, where court rule-making remains subject to legislative override. But there is a crucial difference. In these jurisdictions, if the court makes an error by improperly determining that a legislative enactment deals with a matter of procedure, and therefore falls in the face of a conflicting rule promulgated by the court pursuant to its statutory rule-making authority,190 the worst that can happen is that one or more individual cases may be incorrectly decided. The legislative branch in these jurisdictions retains the power to remedy the court's error for future litigants by enacting appropriate legislation. However, no such relief is available in states where the judiciary has asserted supreme constitutional authority over procedural matters; the only way error can be corrected in these jurisdictions is either through the enactment of a constitutional amendment (as occurred in Idaho following the McCoy case) or through a change in the membership of the court. Since the first method generally requires super-majority votes of the legislature and/or the people, and the second method often takes a lengthy period of time to accomplish, neither alternative provides a realistic opportunity for the assertion of the democratic will in a reasonably timely fashion.

The second point which the cases discussed in this section bring to the fore is that under the principle of judicial review established in Marbury v. Madison191 and today universally recognized at the national level and in every state, it is always the courts which have the ultimate authority to make the determination whether a particular legislative enactment is substantive or procedural. Therefore as long as a state's constitution allows the judiciary to place separation of powers consequences in that determination, i.e., by declaring that the judiciary has exclusive or supreme power over matters of practice and procedure, it should not be surprising that courts will have a natural inclination to make such determinations in a manner which tends to enhance their own powers at the expense of the powers of the legislature. This is not to suggest that the courts in such jurisdictions have acted or will act in bad faith. Rather, it is simply a recognition of Madison's truism about the human condition - "that power is of an encroaching nature," which, when not "effectively restrained," will be prone to "pass[] the limits assigned to it."192

A fundamental precept of democratic government is that, subject to constitutional limitations, the ultimate authority to establish public policy must be committed to the legislature, the branch of government designed to be closest to the electorate and most responsive to their wishes. The question then becomes whether removal of this legislative prerogative in the area of procedural and evidentiary law can be justified in the name of protecting the independence of the judiciary or other values served by the separation of powers doctrine. As the next section demonstrates, this question must be answered in the negative.

V. THE IMPORTANCE OF MAINTAINING LEGISLATIVE CONTROL OVER COURT PROCEDURE

No one would dispute that, where the legislature has not acted, the authority of the judiciary to prescribe rules governing court practice and procedure is essential to the capacity of courts to carry out their constitutionally assigned adjudicative responsibilities. A simple example demonstrates this point. Take New Hampshire Superior Court Rule 58: it provides that a party desiring to object to a motion made by the adverse party must do so within 10 days after the filing of the motion. Because the legislature has not addressed by statute the time for responding to motions, it is easy to see that the absence of judicial power to establish a rule would create a chaotic situation in which each judge was required to address this issue anew every time a motion was filed. The wasted time involved in such a continual need to re-invent the wheel, as well as the potential for conflicting rulings from case to case or judge to judge, would leave lawyers and litigants in a quandary and seriously disrupt the judicial system. Now suppose instead that the legislature has acted by, say, adopting a statute which grants the party opposing a motion 30 days to respond. Here it is much harder to argue that the absence of judicial rule-making power frustrates the ability of the courts to carry on their business. To be sure, the courts may firmly believe - and correctly so - that a 10-day response time would be better than the 30-day period set by the legislature. Yet the absence of power to establish a court-made rule in this situation does not threaten the very ability of the courts to function.

Proceeding a step further, the considerations of expertise, efficiency, flexibility, and accountability discussed in section III of this article provide strong support for the view that legislatures are well-advised to grant the courts a large measure of autonomy in regulating their own practice and procedure. But conceding the proposition that the rule-making task is generally better left in the hands of the judiciary does not justify granting the judiciary the final say on matters of procedural law. This is so for at least three reasons.

A. Judicial Supremacy Over Procedural Law is Fundamentally Inconsistent with the Separation of Powers Doctrine

In describing the judiciary as the branch of government "least dangerous to the political rights of the constitution," Hamilton hastened to add that this was true only "so long as the judiciary remains truly distinct from both the legislative and executive" branches.193 Yet however appropriate and necessary it may be for courts to have rule-making power, it cannot be denied that when courts promulgate rules of practice and procedure they engage in an activity far more akin to legislating than to adjudicating.194 Like the legislature, a court engaged in rule-making may act on its own initiative without the need for a complaint or request from a third party (although, as with the legislature, there often will be such an outside impetus). Also like the legislature, the court typically will give public notice of its proposed action, hold public hearings, and receive comments from various constituencies that have an interest in the subject matter of the rules under consideration.195 Most importantly, like statutes enacted by the legislature, the product which results from the rule-making process are rules of general applicability designed to regulate the future conduct of all or some class of persons not then before the court and not specifically identified. These characteristics of rule-making contrast sharply with the way courts normally function in their adjudicative role - as adjudicators, courts act only in response to a request for relief from an outside party (a litigant), and they apply existing law to some concrete past factual situation involving an actual dispute between discrete parties.196

Because rule-making is in reality just another form of law- making, placing final authority for this function in the judicial branch violates one of the fundamental tenets of the separation of powers doctrine: it removes procedural law from any effective check by the other branches of government. It is true, of course, that courts routinely "make" law - both procedural and substantive - through their everyday process of rendering decisions in adjudicated cases. But except when courts determine the meaning of the constitution, such judge-made law can be changed by the legislature. The essential point of the separation of powers is not to pigeonhole every governmental function into one of three distinct categories - legislative, executive, or judicial. Rather, it is "the effective dispersal of power among separate, and to some degree antagonistic, parties . . . so that all significant actions of any department undergo review by an independent department."197 As Madison explained, "[a]mbition must be made to counteract ambition."198

Just as the lawmaking power of the legislature is subject to the check of the judiciary in the form of the latter's power to declare a statute unconstitutional, so also is the judiciary's lawmaking power circumscribed by the power of the legislature to revise decisional law which is not constitutionally grounded. Rules promulgated by the judiciary fit comfortably into this milieu of checks and balances, as long as the legislature retains the power to revise the rules. But in states where the judiciary is held to have final power over procedural and evidentiary law, there can be no effective check on the power of the courts. In these jurisdictions, the courts not only promulgate the rules prospectively, but they also then pass on the validity and propriety of their own enactments in the context of adjudicating individual cases. This circumstance presents the exact danger against which Madison warned: "Were the power of judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator."199 Writing in more recent times, Professor Kay provided a fuller articulation of these same fundamental concerns:

It is just this danger of unchecked power which is presented by the doctrine of judicial supremacy over matters of procedure. . . . [T]here is no review of a judicial rule once made. Particular legislative enactments are subject to judicial review for constitutionality, and legislators themselves are subject to the periodic checks of reelection. Judicial rule-making, on the other hand, is not subject to any independent scrutiny by another branch, and judges have been deliberately insulated from political checks. The lawyer or litigant who finds a court-made rule inconvenient, irrational, or unconstitutional has no disinterested forum in which to take his complaint. Moreover, the absence of even a potential review must to some extent diminish the care and restraint which might otherwise be present in the rule-making process. Thus viewed, the application of separation of powers to the rule-making authority is more properly concerned, not with the intrusion of the legislature into the judicial department, but with the questionable wisdom of the judiciary, without limit or review, making rules of procedure.200

The lack of accountability which results from giving the judiciary final authority over court rules is problematic from three distinct perspectives. First, as Professor Kay observed, it reduces the incentive for restraint. This - coupled with the inability to articulate a clear standard for differentiating substance from procedure - can foster a climate wherein it becomes relatively easy to promulgate "procedural" rules designed to impose the judges' own notions of what constitutes good social policy.201 Second, as also noted by Kay, it reduces the incentive for care. Judges who need not worry that their work product will be critically reviewed and evaluated by another independent branch of government may be more prone to act in haste or without due deliberation in order to address some particular concern of the moment, without considering the larger implications of their actions.

Third, the lack of rule-making accountability is greatly accentuated when it is combined, as it is in New Hampshire, with a system in which members of the judiciary are effectively granted lifetime tenure.202 With the exception of Massachusetts and New Hampshire, in every other state where the judiciary has asserted final authority over court practice and procedure, the judges of the state's highest court are subject to some form of periodic term renewal, either through partisan election, non-partisan retention election, or reappointment by the governor, the legislature or some combination of the two.203 However troubling one may find the exercise of final rule-making authority by supreme courts of other states (Pennsylvania for example), at least in those states the electorate has some opportunity to express its approval or disapproval of a judge's actions, either directly at the ballot box or indirectly through other elected representatives. No similar mechanism is available to New Hampshire citizens.204

B. Judicial Supremacy Over Procedure Can Stifle Efforts at Reform

Although the trend of placing primary responsibility for regulating court practice and procedure in the hands of the judiciary may be seen as essential to the implementation of modern day reforms, it must also be remembered that the legislative codes which preceded today's rules of civil and criminal procedure were themselves once regarded as the instruments for reforming the rigid and archaic pleading methodology developed by the commonlaw courts. The historical record thus demonstrates that neither the legislature nor the judiciary should be relied upon as the sole repository of wisdom when it comes to keeping courts up to date with the times. Moreover, removing the legislature from a meaningful role in the development of procedural law takes away an important incentive for the judiciary to reform itself. For while judges may have the expertise to bring about reforms, it cannot be assumed that they always have the will or courage to do so. As has been aptly noted, "It is perfectly natural for judges working under one system of procedure to become accustomed to it and to be distrustful of any proposal for change. The immunity from political interests of which judicial rule-making advocates boast may also insulate judges from legitimate public dissatisfaction with the procedural aspects of the judicial system."205 Knowledge that the legislature has the power to bring about judicial reform may spur courts to take the necessary action on their own; where the legislature is without such power, courts are more likely to cling to the status quo.

Perhaps the most telling evidence that a cooperative allocation of rule-making power - in which the courts are granted the primary rule-making responsibility but the legislature retains supervisory control - works best is the results achieved by the federal courts. Operating under just such a cooperative system, Congress and the United States Supreme Court have produced the Federal Rules of Civil Procedure, the Federal Rules of Criminal Procedure, and the Federal Rules of Evidence. Far from being regarded as outdated, biased or parochial, these rules are generally held in high regard by bench and bar alike, and have served as the models after which most states have patterned their own procedural and evidentiary rules.

A relatively recent example of the important role which the New Hampshire Legislature could play in the reform of procedural law involves the proposed New Hampshire Rules of Civil Procedure. These comprehensive rules, modeled after the Federal Rules of Civil Procedure, were the product of more than 13 years of work by a special committee of the New Hampshire Bar Association. After the draft rules were approved by both the bar association and the supreme court's advisory committee on rules, they were submitted to the supreme court for final adoption in 1995. By a 4-1 vote, the court declined to adopt the rules.206 While acknowledging that "there may be flaws in the individual components of the existing [court rules]," the court rejected the notion "that the entire system is too flawed to be maintained."207 Since the proposed rules deal solely with matters of procedure, the PSAE case appears to stand as a bar to the legislature's enactment of the rules into law by statute. Advocating for or against the adoption of the proposed rules is not the focus of this article. It also must be said, however, that there can be no doubt a substantial portion, perhaps a majority, of the lawyers who practice in New Hampshire do not share the court's view that a comprehensive set of civil rules is unnecessary. Since no one could seriously suggest that the proposed rules infringe upon the constitutional rights of any citizen or litigant, one may legitimately ask why lawyers (and others) who disagree with the supreme court's decision should not have the ability to make the case for adoption of the rules before their duly-elected legislative representatives. In our democratic society, the members of any other regulated profession or occupation who are unhappy with rules or regulations adopted by their governing body have the right to lobby the legislature to change the offending rules or regulations. There is no justification for denying this same right to members of the legal profession.

C. Supremacy Over Procedural Law is Not Necessary to Protect Judicial Independence

The strongest evidence supporting the view that judicial supremacy over the making of procedural and evidentiary rules is not essential to preserving the integrity and independence of the courts is the fact that neither the federal court system nor the court systems of 32 states enjoy such rule-making supremacy. No one can seriously suggest that the absence of this power has compromised the independence of the courts in these jurisdictions. As noted previously, the federal rules - adopted under a system which gives Congress the last word - have served as the models for state court rules of procedure and evidence. Moreover, at least since Brown v. Board of Education,208 the federal courts have been regarded as the preeminent forum to which our citizens may turn for the protection of their constitutional and civil rights.

Giving the legislature supremacy over procedural and evidentiary law does not threaten any independence which the judiciary has the legitimate right to demand. Although the term "judicial independence" is often used rather loosely, the core value which these words are intended to capture is the notion that the adjudicative functions of the courts must be protected from undue interference from the legislature, the executive or other outside influences (such as public opinion). That is, neither the other branches nor the public should be allowed to intrude into the judiciary's inquiry into the facts, its declaration of the applicable law, or its rendition of judgment in the case before the court. On the other hand, establishing the general rules by which all future cases of some kind or class will be decided is quintessentially a legislative function; and while considerations of expertise, efficiency, etc., may make it entirely appropriate for the courts to perform this function in the first instance, the final say on these matters must rest with the institution which answers to the democratic will.209

A classic example of a legislative enactment that infringed upon the integrity and independence of the judiciary was presented in the early New Hampshire case of Merrill v. Sherburne.210 In that case, after the court had entered final judgment against him, Merrill petitioned the legislature for a new trial, and the legislature passed a bill granting this request. The court quite properly struck down this legislation as an attempt by the legislature to exercise judicial power.211 A more recent example at the federal level was Congress' attempt to legislatively resurrect securities lawsuits which had previously been dismissed by district court judgments that had become final. In the course of its decision striking down this statute,212 the Supreme Court in Plaut v. Spendthrift Farm, Inc.213 identified three types of legislative actions that unconstitutionally infringe upon the independence of the judiciary: (1) statutes which attempt to "prescribe rules of decisions to the Judicial Department . . . in cases pending before it;"214 (2) statutes which "vest review of decisions of . . . courts in officials of the Executive [or Legislative] Branch[es];"215 and (3) statutes which "retroactively command . . . courts to reopen final judgments."216

Although the PSAE court cited Merrill in support of its holding, it is apparent that the nature of the proposed legislation at issue in PSAE is completely different from any of the prohibited categories just described. HB 1549 did not purport to direct the courts how to decide particular cases pending before them, nor did it seek to reopen cases already adjudicated or to allow another branch of government to review judicial decisions. Rather, the proposed legislation simply sought to effect a change in the law of evidence applicable to future cases, i.e., by creating a rebuttable presumption that "similar act" evidence would be admissible in certain civil and criminal litigation involving sexual assault. In fact, a comparison of the two cases shows that the PSAE court reached a result exactly opposite that which a logical application of the underlying principle at work in Merrill would seem to require. The upshot of Merrill was that it was a violation of the separation of powers principle for one branch of government - there the legislature - to exercise both the power of making the law generally and the power of bringing the law to bear in an individual case.217 Yet in the PSAE case the court found nothing wrong with another branch of government - this time the judiciary - exercising both supreme power to make the general law (i.e., the rules of evidence) and supreme power to apply the law to a specific case. The conflicting results reached in Merrill and PSAE are hard to reconcile with the principle of co-equality among the branches of government.218

If the goal of judicial independence is to protect the integrity of the adjudicative functions of the courts, then PSAE's assertion that HB 1549 violated the separation of powers doctrine because it infringed upon the judiciary's "core function" of insuring a fair trial proves too much. By creating a rebuttable presumption that "similar act" evidence would be admissible in sexual assault cases, the legislature undoubtedly placed limitations on "the judiciary's sound discretion in determining to what extent the rule [404(b)] serves its function in the circumstances of a particular case."219 But the point which PSAE seemed to overlook is that, in promulgating the rules of evidence, the supreme court itself placed numerous restrictions on the discretion of trial judges. Rule 404(b) certainly restricts trial court discretion to admit "similar act" evidence; and virtually all of the other rules of evidence place limits on trial court discretion in one fashion or another.220 As a general proposition, it cannot be disputed that making rulings on the admissibility of evidence on a case by case basis is a uniquely judicial function. This has never been understood to mean, however, that trial judges must have unfettered discretion to make evidentiary rulings based solely on their own notions of fairness. If that were true, the rules of evidence would fail in gross, for the very definition of a "rule" is "a principle or regulation" designed to "govern[] conduct, action, procedure, arrangement, etc."221

Since both HB 1549 and the court-made rules limit the trial courts' exercise of discretion, this factor cannot logically be the basis for saying that the former threatens judicial independence while the latter do not. The inescapable conclusion which follows from this realization is that the supreme court invalidated HB 1549 only because the court disagreed with the policy choice reflected by the way in which the proposed statute limited discretion, i.e., in a manner which presumably would result in an increased risk of admitting propensity evidence in sexual assault cases. And therein lies the problem. For, as long as the legislature does not violate the constitutional rights of any litigant, deciding what is and is not "fair" is a policy decision to be made through the democratic process. As noted previously, a credible argument can be made that the admission of propensity evidence in sexual assault cases violates a defendant's right to due process. Had HB 1549 been enacted into law, and had it been challenged on due process grounds in a case properly brought before the supreme court, the court presumably would have struck down the statute if it agreed with this argument.222 However, since the supreme court did not invalidate HB 1549 on this ground, the legislation must be presumed not to have infringed due process rights.223 And if that is so, the fact that, at some sub-constitutional level,224 justices of the supreme court may have found the use of propensity evidence at odds with their own notions of "fairness" should no more be the basis for holding that the legislature exceeded the bounds of its authority than would the justices' personal views regarding a legislative decision to enact the death penalty or to legalize marijuana use.225

The above discussion demonstrates that supremacy over rule-making is not an essential attribute of preserving judicial independence. But does this mean that the legislature has carte blanche to do whatever it may please when it comes to procedural or evidentiary law? The obvious answer is "no." Returning to the example discussed earlier, suppose that, instead of establishing a 30-day time limit for responding to motions, the legislature decided to pass a statute granting every litigant one full year within which to object to any motion. Such legislation would so completely undercut the ability of the courts to dispense justice on a timely basis that it doubtless would be found to amount to an effective denial of access to the courts, and would be invalidated as unconstitutional on that basis.226 Or suppose the legislature enacted a statute which provided that defendants would always be allowed twice as much time as plaintiffs for closing argument. Again, it seems clear that such legislation would be regarded as so illogical and fundamentally unfair as to run afoul of the due process clauses of the state and federal constitutions.227 As these examples demonstrate, constitutional provisions other than the separation of powers doctrine provide ample authority for the judiciary to protect litigants from legislative excesses in the making of procedural and evidentiary law.228

VI. A PROPOSED CONSTITUTIONAL AMENDMENT

In order to correct the problems discussed above and restore the proper balance of power between the legislature and the judiciary, I propose that part 2, article 73-a of the New Hampshire Constitution be amended to read as follows:

The chief justice of the supreme court shall be the administrative head of all the courts. He shall, with the concurrence of a majority of the supreme court justices, have the power, by rule, to regulate the administration of, and the practice, procedure and law of evidence in, all courts of the state. The rules so promulgated shall have the force and effect of law. The legislature, by statute, also shall have the power to regulate the same matters. To the extent of any conflict between a statute and a court rule, the statute shall prevail.229

Before settling on the above language, I reviewed the constitutions of all 50 states. Given my dual objectives of (1) continuing to allow the judiciary to play a major role in regulating court practice, procedure, and the law of evidence, while at the same time (2) insuring that the legislature retains the ultimate authority over these matters, I considered for a time recommending that article 73-a simply be amended to state that the supreme court has rule-making power but that the legislature can change the rules by statute. Several states have constitutional provisions to this effect.230 The major problem with an amendment worded in this fashion, however, is that it likely would be construed to require (not just allow) matters of practice and procedure to be initiated by the supreme court and would limit the legislature to a review-and-revise function. The legislature would lack power to enact procedural or evidentiary law on its own initiative. Such an approach would continue to deprive the legislature of the full law-making power to which it is entitled, and would also remove the legislature from playing a useful role in stimulating judicial reforms.231

Another formulation which I considered but rejected was the model from those few states which allow their legislatures to override court rules, but require a super-majority vote to do so.232 As this article has demonstrated, while it is both necessary and useful that the judiciary have rule-making power, one must never lose sight of the fact that rule-making is law-making, and therefore falls squarely within the core realm of legislative responsibilities. Before any statute can become law, it must either attain the concurrence of both of the other branches of government (the legislature and the governor) or, if the governor is unwilling to assent, the super-majority assent of the legislature.233 Because it is the job of the legislature to make the laws for all branches of the government, there is no reason for imposing additional hurdles just because legislation deals with the judiciary. By way of analogy, it is worth noting that when the supreme court performs one of its most important core functions - that of determining the constitutionality of a statute - there is no requirement that it act by super-majority vote in order to declare the statute invalid. A bare 3-2 decision of the New Hampshire Supreme Court is all it takes to strike down even the most carefully considered (and widely popular) legislative enactment.

As a prelude to addressing the changes to current law which the proposed amendment would effectuate, it is important to note those matters which the amendment would not change. First, by retaining the first sentence of the current version of article 73-a, the amendment makes it clear that there is no intent to undermine the primary goal of the article as originally adopted: establishing a unified court system. Under the amendment, the chief justice of the supreme court would remain the administrative head of all courts in the state. Second, the amendment also would leave in place the present system under which the supreme court has the sole authority within the judicial branch for promulgating rules of administration, practice and procedure, and evidence. There would be no return to the pre- article 73-a days, when each level of court promulgated its own rules.

The amendment would change present article 73-a in two major respects. First, it would overrule PSAE insofar as that case stands for the proposition that only the judiciary has power to promulgate procedural and evidentiary law. The amendment makes it clear that the legislature has full power (concurrent with the supreme court) to enact statutes dealing with court practice and procedure and the law of evidence. Second, the amendment also overrules PSAE insofar as that case holds that in the event of a conflict between a statute and a court rule, the rule takes precedence. The amendment states unequivocally that in such situations it is the statute that prevails.

In addition to court practice and procedure and the law of evidence, the proposed amendment is worded in such a way that it also gives the legislature final power over matters of court administration. As noted previously,234 some courts and commentators have attempted to draw a distinction between matters of practice and procedure, on the one hand, and matters of court administration on the other; and have asserted that the judiciary should retain exclusive authority with respect to the latter category. I considered the possibility of drafting the proposed amendment to recognize such a distinction, but ultimately rejected the idea. The major drawback of such a formulation is that the distinction between "matters of practice and procedure" and "matters of administration" is apt to be as vague and illusory as the distinction between "procedure" and "substance," and consequently the recognition of such a distinction in the constitution would likely invite the same kind of expansive interpretation by the judiciary of its "administrative" powers as led to the PSAE decision.235 Rather than fostering an effort to resurrect such indistinct distinctions, I believe it is better to inculcate into the constitution a provision which makes it clear that the legislature has power to enact statutes regulating all non-adjudicative functions of the judicial branch.236

To complement this proposed constitutional amendment, I also believe that the legislature should adopt certain changes in statutory law concerning court rule-making. Specifically, I suggest that, with some slight modifications, New Hampshire should follow the rule-making system utilized in the federal courts. Accordingly, I propose that the portion of RSA 490:4 granting the supreme court rule-making authority be repealed and that the following new rule-making statute be enacted:

RSA 490:8 Rules of Procedure and Evidence; Power to Prescribe

The supreme court shall have the power to prescribe rules of practice and procedure and rules of evidence to be followed in all courts of this state.

Such rules shall not abridge, enlarge or modify any substantive right. All pre-existing laws in conflict with such rules shall be of no further force and effect after such rules have taken effect.

The supreme court may establish an Advisory Committee on Rules and such other committees or subcommittees as it shall deem necessary to assist it in the consideration and adoption of rules. The supreme court shall prescribe and publish the procedures for the consideration of proposed rules under this section.

Each meeting for the transaction of business by any committee or subcommittee established by the supreme court under this section, or by the court itself when meeting for the purpose of considering the adoption, amendment or repeal of court rules, shall be subject to the provisions of the Right to Know Law, RSA 91-A; except that the failure to comply with RSA 91-A shall not invalidate a rule adopted under this section unless an action challenging the validity of the rule on this ground is filed with the supreme court within one year after the effective date of the rule.

The supreme court shall transmit to the speaker of the house of representatives and the president of the senate by December 1 of the year proceeding the year in which a rule prescribed under this section is to take effect a copy of the proposed rule. Each proposed rule so transmitted shall include a provision addressing the extent to which the rule shall apply to proceedings then pending before any court, as well as an explanatory note concerning the purpose of, and need for, the proposed rule. The transmission shall also include any minority views of justices or committee or subcommittee members concerning the proposed rule.

A rule shall take effect on June 1 of the year following its transmission to the legislature in accordance with subsection V of this section unless the legislature, by statute, shall provide otherwise.

This proposed statute would accomplish several worthwhile goals. First, subsection I would specifically grant the supreme court statutory authority to promulgate rules of practice and procedure and rules of evidence. Although good government demands that the legislature have ultimate control over procedural and evidentiary law, the considerations of efficiency, expertise and flexibility discussed earlier make it imperative that the judicial branch be granted authority to regulate such matters by rule in the first instance.

Second, subsection II would impose an explicit limitation on the supreme court's rule-making authority by making it clear that rules adopted by the court are to deal only with matters of practice, procedure, and evidence, and not with substantive law. Although the previously discussed difficulty in distinguishing between procedural and substantive law obviously diminishes the value of this provision as a limitation on judicial action, placing this language in the text of the rule-making statute nonetheless will help to serve as a reminder to the supreme court about the parameters of its authority.

The second sentence of subsection II is likely, at first blush, to be a source of concern to legislators. It provides that a rule promulgated by the supreme court supersedes any pre-existing statute in conflict with the rule. I acknowledge that this provision returns to the supreme court a measure of the power which the proposed constitutional amendment takes away. But it is important to understand that this is a statutory grant of power - not a constitutional one - and that the grant therefore can be withdrawn by the legislature at any time. I submit that such a provision is absolutely necessary if court rules are to function effectively and serve their intended purpose. The history of rule-making in this country is replete with instances where the judiciary has played the leading role in bringing about needed reforms to court practice and procedure. In order to accomplish such reforms, however, the courts must have the power to enact rules that may conflict with antiquated procedural statutes. Granting the courts this authority does not in any way infringe on the legislature's prerogative to assert final power over procedural law. In this regard, it will be noted that subsection II provides only that court rules supersede pre-existing statutory law; nothing in the proposed statute prevents the legislature from enacting new legislation to override a court rule if the legislature does not like the manner in which the rule affects pre-existing law.237

Subsections III and IV of the proposed statute establish certain procedural mechanisms by which court rules are to be promulgated. Since the supreme court has already established an Advisory Committee on Rules, subsection III merely places a legislative imprimatur on this committee, while also authorizing the court to establish such additional committees or subcommittees as the court may deem necessary. In order to insure openness and public access to the workings of the rule-making process, subsection IV makes the committees and subcommittees - as well as the court itself - subject to the Right to Know Law when engaged in rule-making activities.238 Subsection IV also provides that a failure to comply with the Right to Know Law shall not invalidate a rule adopted pursuant to the statute unless a challenge to the validity of a rule on this basis is initiated within one year after the date the rule became effective. This one year statute of limitations is patterned after the analogous limitations period found in the Administrative Procedures Act,239 and is designed to insure that challenges to the validity of a rule which are based solely on the alleged failure to comply with the Right to Know Law in connection with the rule's adoption will be resolved relatively quickly and will not pose a threat to the integrity of rules long after they are promulgated. Because the rules in question are promulgated by the supreme court, subsection IV requires that challenges to the validity of a rule for failure to comply with the Right to Know Law must be brought by an action invoking the original jurisdiction of the supreme court.

Subsections V and VI contain the heart of the new rule-making methodology which the statute would establish. Subsection V would require any new rule or any amendment or modification to an existing rule which makes it through the committee process and wins approval by the supreme court to be transmitted to the speaker of the house and the president of the senate by December 1 of the year preceding the year in which the rule is proposed to take effect. The proposed rule would have to contain a provision specifying the extent to which it would apply to cases then pending in the courts. The proposed rule also would have to be accompanied by a statement from the court as to the purpose of the rule and the reason(s) why the court believes the rule is necessary. Finally, the package submitted to the legislature also would have to include the views of any justices or committee or subcommittee members who disagree with the court's decision to adopt the rule. Armed with all this information, the legislature would then have six months within which to take action if it determined the rule should not go into effect. Like the federal statute, the proposed legislation places the onus for action on the legislature and the governor - if the legislature fails to enact a statute to override the rule, or if the governor vetoes the legislation and the legislature is unable to override the veto, the rule takes effect on June 1 of the year following its submission to the legislature.240 In addition to the options of inaction and override, the legislature also has a third alternative: if the legislature determines that it needs more time to consider the proposed rule, it may enact legislation to delay the rule's effective date.

The final point which deserves comment concerns the limited consequences of a failure to comply with the six month time limit. Under the statute, the legislature's failure to act on a court rule within six months simply means that the rule takes effect. Even after the time limit has run, however, there would be nothing to prevent the legislature from exercising its constitutional authority (under the proposed amendment to article 73-a) to enact legislation to repeal or amend the rule.241

VII. CONCLUSION

Legislatures have historically exercised plenary control over court practice and procedure and the law of evidence. A reform movement which began in the 1920's eventually resulted in the highest courts of most states being granted rule-making power. The intent of this movement was to extend the rule-making power to the judiciary, not to remove procedural and evidentiary law from the realm of legislative competence. But beginning with the New Jersey decision in Winberry v. Salisbury, some courts have extrapolated from this laudable reform to create constitutional constructs in which the judiciary has supreme authority over matters of procedure and/or evidence and the legislature has been effectively removed from this field. Fortunately, only a minority of states have followed this course, and only a very small minority have extended the rule of judicial supremacy to the law of evidence. Unfortunately, with the PSAE case, New Hampshire has joined this small minority of states.

The price of judicial independence is that courts are fundamentally anti-democratic institutions. This is surely a price worth paying in order to insure that the courts will be there to protect the constitutional rights of all persons, including particularly minorities and others who may be out of favor with the political winds of the moment. But it goes too far to say that judicial independence requires removal from the majoritarian processes of democratic government a vast array of public policy decisions having nothing to do with the protection of individual rights merely because judges, who are insulated from the political process, have chosen to characterize these decisions as matters of "procedure."242 As this article has demonstrated, rule-making is law-making, and in a free and democratic society the ultimate responsibility for law-making - whether the laws be substantive, procedural, evidentiary, or whatever - must rest with the legislature. Insofar as part 2, article 73-a of the New Hampshire Constitution has been construed to remove some of that law-making power from the people's duly elected representatives, the legislature and the citizens of this state should amend the constitution so as to restore the proper balance of power between the branches of government.

ENDNOTES

1.

Associate Justice, New Hampshire Superior Court. The views expressed in this article are solely those of the author, who does not in any way purport to speak for the New Hampshire Superior Court or any other member of the bench or bar.

N.H.Const., pt. 1, art. 37. That the Founders understood the three branches could never be completely separate of each other is made clear by the final clause of this article. After the language quoted in the text, article 37 goes on to state, ". . . , or as is consistent with that chain of connection that binds the whole fabric of the constitution in one indissoluble bond of union and amity."

See Journal of the 1974 Constitutional Convention, Resolution 141, at 41.

7.

See Bosa v. Merrill, No. 93-E-18 (Coos Cty.Super.Ct.), Order of August 24, 1993 (Fauver, J.), aff'd mem., No.93-748 (N.H.Sup.Ct. March 11, 1994). Indeed, it is hard to imagine what purpose the rules would serve if they did not have "the force and effect of law." If not given this status, how would the rules be treated, as mere suggestions which the parties were free to follow or not as they might see fit in any particular case? To regard the rules as merely advisory (or aspirational) rather than mandatory obviously would eviscerate their value as a means of providing stability and predictability to lawyers, litigants, judges and the public at large.

8.

Id., Order at 4. See also Journal of the 1974 Constitutional Convention at 261-62 (June 18, 1974) (remarks of Delegate Nighswander).

9.

See N.H. Const., pt. 2, art. 74 (supreme court has jurisdiction to render advisory opinions on request of either house of the legislature or of the governor and council).

10.

HB 1549 would have amended RSA 632-A:6 to add a new paragraph V, the complete text of which is set forth below:
V.(a) In criminal prosecutions for offenses set forth in RSA 632-A, for incest and endangering the welfare of a child or incompetent in violation of RSA 639, and for attempts and conspiracies to commit those crimes, and in civil suits for sexual assault, there shall be a rebuttable presumption that evidence of any other sexual assault committed by the defendant is admissible and may be considered for any relevant purpose other than showing the defendant's character. In cases where there is evidence of other sexual assaults by the defendant against the same victim, there shall be a rebuttable presumption that such evidence is admissible to show the defendant's motive, intent, the context of the assault in question, and the relationship of the parties. In cases where there is evidence of other sexual assaults by the defendant against different victims, there shall be a rebuttable presumption that such evidence is admissible to show the defendant's motive and intent. The evidence shall not be excluded unless the trial court finds that the probative value of such evidence is substantially outweighed by the danger of unfair prejudice to the defendant.
(b) As used in subparagraph (a), the term "motive" includes a desire to engage in sexual activity with a certain victim or type of victim, or a desire to control or harm others through sexual assault.
(c) The purposes for which evidence of other sexual assaults may be admitted are not limited to those identified in subparagraph (a). Such evidence continues to be admissible for any relevant purpose except character. The fact that it may also be relevant to character does not render it inadmissible if it is relevant for some other purpose.

Id. at 572 (quoting Riedl, To What Extent May Courts Under the Rule-Making Power Prescribe Rules of Evidence?, 26 A.B.A.J. 601, 605 n.31 (1940)).

23.

The court discussed two possible areas of legislative activity relating to evidentiary matters that might be regarded as exceptions to the general rule. The first involves situations where the legislature creates evidentiary presumptions that are "integral to the definition of the crime or cause of action to be tried." In such circumstances, "the governing presumptions fairly may be recognized as substantive, and therefore constitutionally appropriate for legislative action." 141 N.H. at 572-73. The second involves situations where the legislature adopts an evidentiary rule in connection with its creation or allocation of jurisdiction within or among the courts of the state. Id.
In addition to these two exceptions, the court also observed that even when the legislature does cross the line by enacting procedural legislation, the court may enforce such measures "as a matter of comity when they are consistent with judicial functions and policies and when no constitutional challenge is made to them." Id. at 573-74.

24.

See id. at 570.

25.

Id. at 574.

26.

Id.

27.

See id. at 577-78 ("In essence, the bill before us usurps the judicial function of making relevancy determinations by creating a rebuttable presumption in favor of admissibility without regard for the particular facts or circumstances of a case.").

28.

In addition to asking whether HB 1549 would violate part 1, article 37 or part 2, article 73-a, the senate's original request for an advisory opinion also asked the court a third question: "3. Would any other provision of the New Hampshire Constitution be violated by the enactment of HB 1549, as amended?". See 141 N.H. at 564. However, the senate later amended its request for an advisory opinion to delete this question, id. at 565, and the court's response was directed to the amended request.

29.

Id. at 570 (emphasis added).

30.

Id. at 571 (emphasis added).

31.

See id. at 578.

32.

See note 23 supra.

33.

See N.H.R.E. 102 ("These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.").

34.

Pound, The Rule-Making Power of the Courts, 12 A.B.A.J. 599 (1926).

35.

Although the exact balance between legislative and judicial control of court procedures prior to the nineteenth century has been the subject of debate, the evidence is fairly clear that Parliament-initiated changes to court procedures were common from as early as the fifteenth century and that courts showed no inclination to challenge Parliament's exercise of such power. See Kay, The Rule-Making Authority and Separation of Powers in Connecticut, 8 Conn.L.R. 1, 27 n.134 (1975); Warner, The Role of Courts and Judicial Councils in Procedural Reform, 85 U.Pa.L.R. 441, 442 (1937); Tyler, The Origin of the Rule Making Power and Its Exercise by Legislatures, 22 A.B.A.J. 772, 774 (1936).

Kay, supra note 35, 8 Conn.L.R. at 36. Within 30 years a majority of the states had adopted some form of legislatively enacted code of procedure. See Reidl, supra note 22, 26 A.B.A.J. 601.

40.

Pound, supra note 34, 12 A.B.A.J. at 601. Pound's reference was to the Supreme Court's declaration in 1792, in response to an inquiry by the Attorney General, that it would adhere to the practice of the English courts of King's Bench and Chancery subject to such alterations as the Court deemed necessary. See 2 U.S. (2 Dall.) 411 (1792). What Pound did not generally mention, however, was that Congress had expressly authorized the Supreme Court to alter modes of procedure in the Judiciary Act passed earlier in 1792. 1 Stat. 676. See Kay, supra note 35, 8 Conn.L.R. at 28 n.134.

41.

Pound, supra note 34, 12 A.B.A.J. at 601 (emphasis added).

42.

But see Wigmore, All Legislative Rules for Judiciary Procedure Are Void Constitutionally, 23 Ill.L.R. 276 (1928). Dean Wigmore's view that exclusive judicial control of procedure is constitutionally mandated has been roundly criticized. One article went so far as to proclaim, "Wigmore's omnibus argument is better taken as the jeu d'espirit of a master than as a serious constitutional analysis." Kaplan & Greene, The Legislature's Relation to Judicial Rule-Making: An Appraisal of Winberry v. Salisbury, 65 Harv.L.R. 234, 251 (1951); see Joiner & Miller, Rules of Practice and Procedure: A Study of Judicial Rule Making, 55 Mich.L.R. 623, 628 (1957).

43.

Indeed, to the extent there was a separation of powers component to the debates at this time, it was more likely to focus on the question of whether rule-making power could be constitutionally granted to the courts, rather than whether such power could be denied to the legislature. Kay, supra note 35, 8 Conn.L.R. at 38.

While it is most assuredly true that granting the judiciary the ultimate power to both make and interpret the law of procedure reduces the potential for inter-branch conflict, there is a significant price to be paid: upsetting inter-branch equilibrium by turning the courts into a "super-branch" of state government. See Bologna, Comment, An Abuse of Power: How the Pennsylvania Supreme Court Uses Article V, Section 10(c) of the Pennsylvania Constitution to Dominate Procedural Lawmaking, and Why Pennsylvania Should Amend this Constitutional Provision, 71 Temple L.R. 711, 732-34 (1998).

49.

See Pound, supra note 34, 12 A.B.A.J. at 602-03.

50.

Pound, The Causes of Dissatisfaction with the Administration of Justice (1906), reprinted at 35 F.R.D. 273, 281-82 (1964).

28 U.S.C. § 2072(b). There is of course a wealth of federal case law expounding upon the contours of substantive versus procedural law under this statute and under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). See Hannav. Plumer, 380 U.S. 460 (1965). Discussion of this case law is beyond the scope of this article and, in any event, is largely irrelevant to the question of the appropriate dimensions of legislative and judicial power in court rule-making. However erroneous or wrongheaded a rule adopted by the federal courts may be, the important point for present purposes is that Congress has the unquestioned power to change it. This is the power which the PSAE decision denies to the New Hampshire General Court.

58.

Pub.L. 100-702, Title IV, 102 Stat. 4648, as amended, 28 U.S.C. §§ 2071-2077. In general, the changes implemented by the 1988 legislation were designed to provide greater public and Congressional scrutiny over the rule-making process. See David D. Siegel, Commentary on 1988 Revisions, following §§ 2071-2077 in United States Code Annotated.

59.

The method for prescribing local rules governing the practice in particular circuit or district courts is specified in 28 U.S.C. § 2071. All such rules must be consistent with federal statutes and with the general rules of procedure and evidence prescribed pursuant to §§ 2072-2074. Local district court rules can be modified or abrogated by the judicial council of the relevant circuit, 28 U.S.C. § 2071(c)(1), which is required to periodically review such rules for consistency with the general federal rules. 28 U.S.C. § 332(d)(4). Local circuit court rules can be modified or abrogated by the Judicial Conference of the United States, 28 U.S.C. § 2071(c)(2), which has the responsibility to review them. 28 U.S.C. § 331.

60.

See 28 U.S.C. § 2073.

61.

28 U.S.C. § 2074(a). Of course, Congress also may act to delay the effective date of a proposed rule in order to give itself more time to consider the rule.

62.

28 U.S.C. § 2074(b). Congress was especially troubled by some of the proposals for modifying or eliminating well-established common law privileges that were contained in the original Federal Rules of Evidence promulgated by the Supreme Court in 1972. As a result of these concerns, Congress apparently felt that in this one area of rule-making something more than simple legislative inertia should be required to effectuate a change of the status quo. See Siegel, supra note 58, commentary following § 2074.

63.

28 U.S.C. § 2072(b).

64.

Interview of U.S. Circuit Judge Patrick Higginbotham: Rules Changes Under Review, The Third Branch 10, 11 (1995); see Geyh, Highlighting a Low Point on a High Court: Some Thoughts on the Removal of Pennsylvania Supreme Court Justice Rolf Larsen and the Limits of Judicial Self-Regulation, 68 Temple L.R. 1041, 1065 (1995).

65.

See Order of the Supreme Court of the United States dated November 20, 1972.

66.

Act of March 30, 1973, Pub.L. 93-12, 87 Stat. 9.

67.

Act of Jan. 2, 1975, Pub.L. 93-595, 88 Stat. 1926.

68.

Rules 413-415 of the Federal Rules of Evidence were not adopted pursuant to the normal rule-making process. Rather, these rules were initially enacted by Congress on September 13, 1994, as part of the Violent Crime Control and Law Enforcement Act of 1994, Pub.L. 103-322, Title XXXII, § 320935, 108 Stat. 2136. The legislation also provided that, after enactment, Rules 413-415 would be transmitted to the Judicial Conference, which was given 150 days to submit to Congress its recommendations for amending the Federal Rules of Evidence as they affect the admission of "similar act" evidence in cases of sexual assault or sexual molestation. If the Judicial Conference's recommendations were the same as Rules 413-415, these rules were to take effect 30 days after the Conference transmitted its recommendations to Congress. If the recommendations of the Judicial Conference differed from Rules 413-415 (or if the Judicial Conference failed to respond to Congress), the rules were to take effect 150 days after the date the Conference's recommendations were due to be submitted to Congress, unless Congress took further action. On February 9, 1995, the Judicial Conference submitted its report to Congress, recommending that Congress reconsider its position and repeal the new rules. Alternatively, the Judicial Conference proposed that, instead of adding Rules 413-415, Rules 404 and 405 be amended to incorporate the substance of what Congress sought to achieve by the new rules, while also (1) adding some language specifying the factors courts were to consider in admitting similar sex act evidence and (2) clarifying the relationship of the new provisions to other sections of the rules. Congress took no action on the Judicial Conference's recommendations, and Rules 413-415 took effect on July 9, 1995.

69.

See Page, Judicial Beginnings in New Hampshire, 1640-1700, at 43 (1959) ("[T]he rule-making power was firmly established over three hundred years ago. A statute in 1701 confirmed the ancient power which has never been lost."), quoted in Garabedian v. William Company, 106 N.H. 156, 157 (1965).

70.

21 N.H. 231 (1850).

71.

At the time of this decision, New Hampshire's highest court was known as the Superior Court of Judicature.

72.

Id. at 232 (emphasis added). Not only did the court hold that the statute trumped the trial court's order, but it also refused to find that plaintiff's actual appearance at the deposition constituted a waiver of any objections to notice. The court reasoned that while a party's appearance at deposition might justify an inference of waiver in "ordinary cases," no such inference was justified in the present case because the trial court's order prevented plaintiff's appearance from being regarded as voluntary. Id.

73.

42 N.H. 165 (1860).

74.

Id. at 178.

75.

Id.

76.

Id. at 178-79. The court recognized that general rules are in some sense similar to statutes, in that "they constitute the rules of decision and the test of right, as to everything done while they continue in force . . . ." But it also noted that the general rules "have material differences from the statute laws." Among the most important difference is that courts, being the source of the general rules in the first place, retain the power, by special rule, to exempt particular cases from the operation of the general rules "as justice may require." Id. at 179. The obvious implication of this statement about the difference between court rules and statutes was the court's recognition that, unlike the situation with rules, courts have no power to exempt any particular cases from the operation of a statute unless the statute itself so provides.

77.

Id. at 178. In the end, the Deming court found that there was no conflict between the statute and the rule: the statute required that a deposition be preceded by reasonable notice, but "what shall be deemed reasonable" in any given case was a determination for the courts to make depending upon the "special circumstances" of that particular case. Id. at 179. Since the deposition at issue in Deming had been taken without any notice to the defendant, the court held that its admission at trial was error. Id.

78.

66 N.H. 207 (1890).

79.

Id. at 211 (emphasis added).

80.

78 N.H. 413, 417 (1917) (holding that court could compel defendant's officers to produce sketch and photograph in advance of trial, "unless there is some statute of this state or rule of procedure which forbids it").

81.

106 N.H. 156 (1965). This case did not involve a conflict between a statute and a court rule. Instead, the issue was simply whether the superior court had the authority to dismiss the plaintiff's bill in equity for want of prosecution where the parties failed to comply with a court order requiring them to submit an agreed statement of facts by a date certain. Citing the long history of New Hampshire courts' exercise of rule-making authority, the supreme court held that the superior court had the power to dismiss the case for failure to comply with its order. Id. at 157.

82.

107 N.H. 267 (1966). Nassif also did not involve a statute-versus-rule conflict. The issue in the case concerned simply the validity of what was then Superior Court Rule 5 (now Rule 8), which requires a party desiring a jury trial to make a timely demand therefor or be deemed to have waived trial by jury. The court upheld the rule as "a valid, reasonable procedural regulation" of the constitutional right to a jury trial. Id. at 270.

83.

97 N.H. 239 (1952).

84.

Id. at 242 (emphasis added). It should be noted that Mundy was a 3-2 decision. However, the dissenters in that case never questioned the authority of the legislature to create statutory exceptions to the hearsay rule (or to enact other evidentiary laws). Rather, their dissent was based on the view that (1) the statute at issue should not be construed to authorize the receipt of hearsay evidence, and (2) if construed in that fashion, the statute violated the defendants' due process rights under the state and federal constitutions. See id. at 245 (Kenison and Duncan, JJ., dissenting).

85.

Mundy vividly demonstrates that the PSAE decision converted New Hampshire's constitutional system from a regimen where even the courts could promulgate rules of evidence to one where, with at best limited exceptions, only the courts can do so.

86.

See, e.g., Opinion of the Justices (Certain Evidence in Sexual Assault Cases), 140 N.H. 22 (1995) (upholding validity of proposed legislation making the victim's manner of dress inadmissible as a basis for inferring consent in sexual assault cases, subject to exception where defendant's due process rights require admission); State v. Rhodes, 139 N.H. 432, 433-34 (1995) (noting that "depositions in criminal cases are ordinarily governed by statute in our State," and upholding the trial court's denial of deposition where requirements of RSA 517:13 were not met); In re Gina D., 138 N.H. 697, 700 (1994) (both majority and dissenting opinions accepted without question the validity of RSA 169-C:12, which makes rules of evidence inapplicable to abuse and neglect proceedings); Wright v. Clark Equipment Co., 125 N.H. 299 (1984) (relying on RSA 526:1 as authority to grant plaintiff a new trial); State v. Howard, 121 N.H. 53 (1981) (upholding validity of rape shield statute, which makes inadmissible prior consensual sexual activity between the victim and anyone other than the defendant, again subject to due process exception).

87.

124 N.H. 171 (1983).

88.

RSA 490:4-a (1975).

89.

For example, if read literally, the term "control of the courtroom" could presumably be interpreted to mean that the presiding judge has the power to limit the kinds of cases he or she will hear. Under this construct, if a judge did not like to hear, say, robbery cases, or slip and fall cases, or divorce cases, the judge could simply exercise "control of the courtroom" to bar such cases from being brought before him. Clearly this was not the type of "control of the courtroom" which the supreme court had in mind, for judges obviously have no power to refuse to hear cases properly invoking the jurisdiction of the courts on which they sit.

90.

Id. at 179. As further support for its conclusion that the legislature had no power to control the "internal affairs" of the judiciary, the LaFrance court pointed to the fact that it (the supreme court) would have no power to control the rules by which the other brances of government conducted their business. See id. at 181-82. Although this attempted analogy may seem appealing at first blush, it cannot withstand critical scrutiny. Despite the fact that our government consists of legislative, executive and judicial branches, there is undoubtedly overlap between the functions of each branch. The result is that each branch performs some functions which properly fall within the primary responsibility of another branch. There is nothing wrong with this, as long as the branch which does have primary responsibility for a particular function retains its power to have the final say over the function in question. As the branch with the primary responsibility for law-making, the legislature must retain the power to have the final say on making general rules to govern the operations of all three branches of the government. By the same token, because the judiciary is the branch with primary responsibility for adjudication, it must have the final say over adjudicative decisions made by all three branches of the government. Hence, the fact that the judiciary does not have the power to control the operating rules of the legislature no more supports the argument that the legislature should not have the power to control the rules by which the courts operate than does the fact that the executive cannot overrule decisions of the supreme court mean that adjudicative decisions of executive branch agencies should not be subject to judicial review.

91.

See id. at 179-80 (citing, e.g., Kersevich v. Jaffrey Dist. Ct., 114 N.H. 790 (1974), State v. Moquin, 105 N.H. 9 (1963), and Opinion of the Justices, 86 N.H. 597 (1933)). There can be no doubt that depriving courts of their contempt power would effectively emasculate them as an independent branch of government, since without this power courts would have no effective mechanism for maintaining order in proceedings before them or for enforcing their decrees and judgments.

92.

Id. at 182-83.

93.

114 N.H. 369 (1974).

94.

See Whippie, 114 N.H. at 368:
A courtroom is a place where issues are settled not by a show of force but by quiet consideration of evidence and the application of settled principles and reason. In his courtroom, the judge, as the representative of the law and of the judicial branch of our government, is the controlling authority. In our opinion the wearing of side-arms by police officers is a symbolic challenge to that authority and a mark of disrespect for it.

95.

While the LaFrance decision can be justified because of the symbolic threat to judicial independence there at issue, a later decision dealing with the matter of court security is more problematic. In Petition of Mone, 143 N.H. 128 (1998), the court invalidated on separation of powers grounds a statute that transferred responsibility for providing security for the district courts from the judicial branch to the county sheriffs. The court's determination that security is an integral part of the adjudicative responsibilities of the judicial branch, id. at 135, appears questionable. Unlike the executive branch, judges have no particular expertise in the area of security matters. More importantly, even assuming that security can be viewed as an integral part of the adjudicative process, the point the court seemed to overlook was that the legislation at issue never questioned the judiciary's power to have the final say over courtroom security. That is, the legislation contained no suggestion that the sheriff's bailiffs who were to provide district court security would not, like their superior court counterparts, be "under the direct supervision of the presiding judge." Id. at 137. Rather than challenging the judiciary's authority to control courtroom security, the legislation appears to have been motivated by benign administrative and budgetary concerns, i.e., the legislature's desire to consolidate all trial court security employees in one agency, the county sheriffs. Consequently, it is doubtful that the legislation posed any real threat to judicial independence. On this point, it must be noted that, at the federal level, security for the United States district and circuit courts is provided by the United States Marshals Service, which, as an arm of the Department of Justice, is an executive branch agency. See 28 U.S.C. §§ 561, 566. See also Price v. Superior Court, 230 Cal.Rptr. 442, 451 (Cal.App. 1986) ("separation of powers is not offended by legislation reasonably permitting the executive officers of government to appoint and compensate court assistants"), disapproved on other grounds in Zumwalt v. Superior Court, 260 Cal.Rptr. 545, 553 n.16 (Cal. 1989).

Whether or not there is any specific constitutional or statutory limitation to this effect, courts in all states seem to agree that, as in the federal system, judicial rule-making may not enlarge, abridge or modify substantive rights. Of course, as the discussion which follows will highlight, the central issue in most cases is whether the subject of a statute or court rule involves a matter of procedure or a matter of substantive rights.

98.

La. Const. art. V, § 5(A); Neb. Const. art. V, § 1; N.J. Const. art. VI, § 2, para. 3 (but see the discussion of Winberry v. Salisbury infra); S.C. Const. art. V, § 4; Tex. Const. art. V, § 3; Va. Const. art. VI, § 5.
In addition to the constitutional provision making court rules "subject to law," in 1985 the South Carolina Constitution was amended to add § 4A to article V. This new section requires that all rules of practice and procedure adopted by the supreme court be submitted by a date certain to the judiciary committees of each house of the legislature. The rules become effective 90 days after submission unless disapproved by a concurrent resolution of both houses adopted with the concurrence of three-fifths of the members of each house present and voting.

99.

Ala. Const. art. VI, § 11 (legislature can change rule promulgated by supreme court "by a general act of statewide application"); Alaska Const. art. IV, § 15 (rules adopted by supreme court "may be changed by the legislature by two-thirds vote of the members elected to each house"); Fla. Const. art. V, § 2(a) (rules adopted by supreme court may be repealed by two-thirds vote of each house of legislature); Md. Const. art. IV, § 18 (rules promulgated by state's highest court have "force of law until rescinded, changed or modified by the Court of Appeals or otherwise by law"); Mo. Const. art. V, § 5 (rule promulgated by supreme court "may be annulled or amended in whole or in part by a law limited to that purpose"); Mont. Const. art. VII, § 2 (rules of procedure adopted by supreme court "shall be subject to disapproval by the legislature in either of the two sessions following promulgation"); N.C. Const. art. IV, § 13(2) (should legislature delegate trial court rule-making power to supreme court, it may still alter, amend or repeal any trial court rule adopted by supreme court); Ohio Const. art. IV, § 5 (rules proposed by supreme court must be filed with the legislature and take effect a certain time thereafter unless disapproved by a concurrent resolution of both houses); S.D. Const. art. V, § 12 (rules made by the supreme court "may be changed by the Legislature"); Utah Const. art. VIII, § 4 ("The Legislature may amend the Rules of Procedure and Evidence adopted by the Supreme Court upon a vote of two-thirds of all members of both houses of the Legislature."); Vt. Const. ch. II, § 37 (any rule of practice and procedure adopted by supreme court may be revised by the general assembly).

In three of these states court rule-making plays a relatively minor role in regulating practice and procedure because the legislatures have adopted comprehensive procedural codes. See 7B McKinney's Cons. Laws of N.Y., N.Y. Civil Prac. Law and Rules (1990); 11A McKinney's, supra, N.Y. Crim Proc. Law (1992); Okla. Stat. §§ 12-1 et seq. (Code of Civil Proc.); Okla. Stat. §§ 22-1 et seq. (Code of Crim. Proc.); Ore. Rev. Stat. §§ 1.001 et seq. and 131.005 et seq. In the other three states, court rules, adopted under legislative authorization, appear to play a more significant role. See Kans. Stat. Ann. § 20-321; Me. Rev. Stat. Ann. §§ 4-8, 4-9; R.I. Gen. Laws § 8-6-2.
Many of the states which have constitutional provisions granting rule-making power to the courts also have enacted statutory law on the subject. See Ariz. RSA § 12-109; Ark. Code §§ 6-11-301, 302; Colo. Stat. §§ 13-2-108, 109 (supreme court authorized to promulgate rules of civil and criminal procedure respectively), § 13-22-128 (supreme court authorized to promulgate rules of evidence, subject to legislative modification or elimination); Ga. Code § 24-106 (rules of court not in conflict with federal or state constitutions or laws "are binding and must be observed"); Haw. Rev. Stat. § 602-11; Idaho Code § 1-212; Ind. Stat. § 34-8-1-3; Iowa Code Annot. § 602.4202 (court proposed rules must be submitted to legislative council, which may delay implementation until legislature acts; legislature can disapprove or modify rules by majority vote); Md. Code § 1-201; Mass. Gen. Laws ch. 211, § 3; Mich. Stat. Annot. § 27A.223; Minn. Stat. Annot. §§ 48.05 et seq. (supreme court may adopt rules of civil and criminal procedure and evidence, but legislature may modify or repeal any rule adopted by the court); Miss. Code §§ 9-3-39, 61 (supreme court may adopt rules "consistent with law"); Mo. Stat. § 477.010 (supreme court authorized to promulgate rules which are not "contrary to or inconsistent with the laws in force for the time being"); Mont. Code Annot. § 3-1-112 (courts may "make rules, not inconsistent with the laws of this state, for [their] own government and government of [their] officers"); Nev. Rev. Stat. § 2.120 (supreme court authorized to make rules for all courts "not inconsistent with the constitution and laws of the state"); N.C. Gen. Stat. §§ 7A-33, 34 (supreme court authorized to prescribe rules of practice for superior and district courts "supplementary to, and not inconsistent with, acts of the general assembly"); N.D. Code §§ 27-02-08 et seq.; Ohio R.L. §§ 2501.08, 2503.36; S.D. Cod. Laws § 16-3-2; Tenn. Code Annot. §§ 16-3-402 et seq. (supreme court authorized to promulgate rules, but such rules do not become effective until approved by joint resolution of both houses of the legislature); Tex. Gov. Code §§ 22.004, 22.108, 22.109 (rules of civil procedure, criminal procedure and evidence promulgated by supreme court and court of criminal appeals remain in effect until changed by the legislature); Va. Code § 8.01-3 (supreme court authorized to promulgate rules of procedure and evidence, which may not conflict with statutory law and which may be changed by the general assembly); Wash. Rev. Code § 2.04.190; W. Va. Code § 51-1-4; Wisc. Stat. Annot. § 751.12 (supreme court is authorized to promulgate rules, which suspend previously enacted statutes in conflict therewith, but legislature may "enact, modify or repeal statutes or rules relating to pleading, practice or procedure"); Wyo. Stat. § 5-2-114.

103.

One article aptly described the process by which this expansion occurred: "Pound's defense of the right of the judiciary to act pursuant to a legislative delegation of authority" . . . "laid the groundwork for the more radical theory that judicial rule-making was exclusively a judicial function." Browde & Occhialino, Separation of Powers and Judicial Rule-Making Power in New Mexico: The Need for Prudential Constraints, 15 N.M.L.R. 407, 421, 425 (1985).

John S. Westervelt's Sons v. Regency, Inc., 70 A.2d 767, 771 (N.J. 1950). Although the Regency court did not purport to render a definitive interpretation of the "subject to law" language, even the court's conclusion that the new constitution at least gave the court power to promulgate rules that would supersede pre-existing statutes seems questionable in light of this language.

114.

Indeed, in the Regency case, the court had said that "it had no occasion to make a definitive pronouncement as to the essential quality and meaning of the phrase `subject to law,' and that [t]he question is reserved for full argument in a case in which it is directly raised." 70 A.2d at 771.

115.

One article suggests that, though unnecessary to its decision, the court may have seen fit to address the meaning of "subject to law" because: (1) the court was displeased with language in the lower court's ruling in the case, which had indicated the legislature did have power to override court rules, see Winberry v. Salisbury, 68 A.2d 332, 333-34 (N.J.App. 1949); and (2) the court was concerned that the legislature might attempt to enact certain legislation pursuant to this perceived power. See Kaplan & Greene, supra note 42, 65 Harv.L.R. at 238.

116.

Because construction of the constitutional provision was entirely unnecessary to the Winberry decision, it is questionable whether the court's treatment of that issue should be regarded as a holding, or as mere dictum.

117.

74 A.2d at 409-10.

118.

Id. at 414 (Case, J., concurring).

119.

Id. at 417-18.

120.

Justice Case cited as examples of "rules of administration," which the constitution exempted from legislative override, rules concerning such things as the number of parts into which the trial court would be divided, the types of cases that each part would hear, and the number of judges assigned to each part. See id. at 414-415. Some commentators also have recognized a distinction between rules of this type, which involve what might be termed the judiciary's internal operating or personnel mechanisms, and rules of practice and procedure, which govern the carrying out of the court system's public responsibilities and the manner in which lawyers, litigants and others interact with the court system. See, e.g., Joiner & Miller, supra note 42, 55 Mich.L.R. at 644-53; Levin & Amsterdam, supra note 51, 107 U.Pa.L.R. at 32-37; but see In re Constitutionality of Statute Empowering Supreme Court to Promulgate Rules Regulating the Pleading, Practice, and Procedure in Judicial Proceedings, 236 N.W. 717, 721 (Wisc. 1931) (rejecting distinction). Of course, as is invariably true with attempts at line-drawing, determining which matters constitute administration and which constitute practice and procedure will prove difficult in cases at the margins. See Kay, supra note 35, 8 Conn.L.R. at 31 n.147.

121.

Indeed, an earlier version of the provision in question had been worded as follows: "The Supreme Court shall, subject to law, make rules governing the administration and the practice and procedure in all the courts of the State." As so worded, the provision would have made both rules of administration and rules of practice and procedure subject to legislative override. However, in the final version, the "subject to law" phrase was moved so that it would modify only that portion of the sentence granting the supreme court power to make rules of practice and procedure. As Justice Case observed, "Beyond peradventure the constitution means that the court in making rules has a certain field in which it shall not be `subject to law,' and that it has another field in which it acts `subject to law.'" 74 A.2d at 416.

122.

See id. at 410 (emphasis added). The Winberry majority relied on the fact that the formal report of the judiciary committee was not presented to the convention until after the judicial article of the constitution had been voted upon. Id. Such reliance is little more than a make-weight, for as Justice Case noted, (1) the members of the judiciary committee were present when the measure was adopted by the convention and certainly would have expressed their views if, during the debate, anyone had suggested that the language had some other meaning than what its plain language indicated, and (2) after the judiciary committee report had been submitted, there was supplemental debate on the judicial article, including the very sentence at issue, yet no one questioned the meaning of the "subject to law" language. Id. at 418 (Case, J., concurring). See also Levin & Amsterdam, supra note 51, 107 U.Pa.L.R. at 25 n.114 (citing 2 N.J. Constitutional Convention of 1947, at 146-47 (1951)).

123.

As Justice Case aptly observed:
It is quite out of character that a group of legal experts, intent upon drawing the most notable document of their lives, would use the same word in a whole series of related paragraphs and intend in one of those instances, in the midst of all the others, to give a very special and limited meaning without adding some adjectival distinction.Id. at 416.

This review also may serve as a harbinger of the way in which New Hampshire law may develop unless article 73-a of the constitution is amended.

127.

See 74 A.2d at 411.

128.

551 P.2d 1354 (N.M. 1976).

129.

The statute provided that a journalist or newscaster's sources of information, as well as any unpublished information, did not have to be disclosed in any legislative, judicial, executive or administrative proceeding unless a district court judge found that disclosure was "essential to prevent injustice." See 551 P.2d at 1355-56.

130.

Id. at 1357.

131.

Id. at 1359. The court also invalidated, as beyond legislative power, another section of the statute, which provided that appeals from a district court decision ordering disclosure were to be "heard [by the supreme court] de novo and within twenty (20) days from date of docketing." See id. at 1359-60.

Id. In a concurring opinion, Justice Turner would have gone further. He was prepared to hold that in all cases in which a statute of a procedural nature conflicts with a procedure established by the judicial branch, the judicially established procedure must prevail (apparently without considering the extent towhich the statute compromises the primary purpose and effectiveness of the judicially established procedure). See id. at 407 (Turner, J., concurring).

136.

Id. In contrast to the holdings in Ammerman and Sypult, most commentators have concluded that evidentiary privileges should be treated as matters of substantive law because they generally involve the resolution of competing policy interests. See Sinda, Rules of Evidence: An Exercise of Constitutional Power by the Michigan Supreme Court, IV Det.C.L.R. 1063, 1095-96 (1980); Riedl, supra note 22, 26 A.B.A.J. at 605; Joiner & Miller, supra note 42, 55 Mich.L.R. at 651. See also Sypult, 800 S.W.2d at 409 (Glaze, J., dissenting) ("the psychotherapist-patient privilege is a rule that clearly vests in a person a substantive right that never existed at common law").

137.

486 P.2d 247 (Idaho 1971).

138.

See Idaho Const. art. V, § 13.

139.

700 P.2d 942 (Idaho 1985).

140.

Id. at 944 (quoting State v. Smith, 527 P.2d 674, 676-77 (Wash. 1974)). In Smith, the court held that despite the fact neither constitutional nor statutory law in Washington granted a defendant charged with first degree murder the right to bail prior to trial, once the defendant had been convicted, the trial court was free to release the defendant based on the court's "procedural" rule!
The two dissenting justices in Currington scoffed at the notion that the matter of bail was "procedural," one of them writing: "The truth is that there are few more substantive issues in the law than the issue of whether or not a person should be incarcerated, regardless of whether that determination is based upon a sentence of imprisonment or upon the right or denial of bail." Id. at 946 (Bakes, J., dissenting).
In a more recent case, State v. Beam, 828 P.2d 891 (Idaho 1992), the court held that a provision contained within the state's death penalty statute which limited to 42 days the time for making legal or factual challenges to a sentence of death prevailed over a court rule allowing an illegal sentence to be corrected at any time. Despite the fact that the statutory provision explicitly stated that it was designed to govern the procedure for obtaining review of a death sentence, the court majority concluded that the provision was substantive because it was an integral part of the overall statutory scheme which established the death penalty. Id. at 893.

141.

353 A.2d 723 (Conn. 1974).

142.

The statute was modeled after the federal Jencks Act, 18 U.S.C. § 3500.

143.

Id. at 731. In separate dissenting opinions, two justices traced the long history of Connecticut legislative enactments dealing with procedural and evidentiary matters, and concluded that there was no basis for the majority's assertion that the judiciary has exclusive authority over procedure. Id. at 735 (Cotter, J., dissenting) and 741 (Bogdanski, J., dissenting). Justice Bogdanski wrote:
For separation of powers purposes, the distinction between "substance" and "procedure" is illusory. The problem is not that the line between the two is imprecise. Rather, questions of "procedure" may and often do present basic issues of public policy above and beyond the subject of efficient judicial administration. "Procedure conditions and determines legal relations. The substantive importance of judicial procedure to society lies in the fact that it conditions and determines the way in which judicial power is made operational. This is a matter of great popular concern." 1 Sutherland, Statutory Construction (4th Ed.) § 3.27. As Mr. Justice Frankfurter succinctly put it, "[t]he history of American freedom is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781,787, 89 L.Ed. 1029.Id. at 744.

144.

575 P.2d 929 (Nev. 1978).

145.

A number of states have such statutes, and most have been upheld against separation of powers attack. See, e.g., Traynor v. Leclerc, 561 N.W.2d 644 (N.D. 1997); State v. Holmes, 315 N.W.2d 703 (Wisc. 1982) (listing states with peremptory judicial disqualification statutes or rules).

146.

495 N.E.2d 501 (Ill. 1986).

147.

Id. at 506. Justice Simon dissented. After noting that in prior decisions the court had upheld legislative enactments prescribing rules of evidence, mandating that a judge impose a particular sentence, requiring a judge to inspect a presentence report before imposing sentence, and ordering a judge to wait two days between the stages of a bifurcated divorce proceeding, but had invalidated statutes requiring a judge to state his reasons for imposing sentence, mandating five days notice before dismissing a case ex parte for lack of prosecution, and ordering a judge not to proceed for two days if a defendant absconds during trial, Simon opined that he could "discern no rhyme or reason to the distinctions the court [had] made" in these various cases. Id. at 508 (Simon, J., dissenting). He also argued that the statute under consideration in Joseph "represents a policy decision by the legislature . . . that due to a contraction of other procedural safeguards, the defendant shoul, d be protected by having a fresh eye look at the case before it is summarily dismissed." Id.

148.

Pa. Const. art. V, § 10(c).

149.

435 A.2d 158 (Pa. 1981).

150.

456 A.2d 1326 (Pa. 1982).

151.

435 A.2d at 160-61.

152.

Id. at 161-62 (citing, e.g., Williams v. Florida, 399 U.S. 78 (1970); Bloom v. Illinois, 391 U.S. 194 (1968); Duncan v. Louisiana, 391 U.S. 145 (1968); Singerv. United States, 380 U.S. 24 (1965); Adams v. United States ex rel. McCann, 317 U.S. 269 (1942)). Justice Roberts also advanced two policy arguments against giving the prosecution veto power over a defendant's waiver of jury trial: (1) it would burden the court system with too many jury trials, resulting in increased costs and docket backlogs; and (2) it would permit the prosecutor to use a right, historically designed for the protection of the accused, against the accused for tactical advantage. See 435 A.2d at 164-67.

Id. at 169 (opinion of Nix, J.); id. at 172 (opinion of Larsen and Kauffman, JJ.).

155.

456 A.2d at 1329.

156.

Id. at 1332-33 (McDermott, J., dissenting).

157.

394 A.2d 444 (Pa. 1978).

158.

The court noted that the Michigan Supreme Court had used a similar procedure to invalidate an analogous attempt to extend Michigan's Sunshine Law to the rule-making activities of the judiciary. Id. at 445 n.1 (citing In re Sunshine Law of 1976 PA 267, 255 N.W.2d 635 (Mich. 1977)). In view of the Michigan Supreme Court's recent decision in McDougall v. Schanz, 597 N.W.2d 148 (Mich. 1999), discussed infra, it is questionable whether PA 267 retains any precedential value. See McDougall, 597 N.W.2d at 172 (Cavanaugh, J., dissenting).

159.

Id. at 446. Stating that it was issuing the letter of address out of its "deepest respect to our coordinate branches [of government]," the court implied that its only other alternative "would be to await an adversary's challenge to our failure to follow the Open Meeting Law." The court rejected the latter approach because it "would risk creating and prolonging unnecessary tension between our branches of government." Id.

160.

Bologna, supra note 48, 71 Temple L.R. at 725. See Ledewitz, What's Really Wrong with the Supreme Court of Pennsylvania, 32 Duq.L.R. 409, 419 (1994) (remarking that a letter of address "is a pretty strange way for a court to do business . . . ."); Gallant, Judicial Rule-Making Absent Legislative Review: The Limits of Separation of Powers, 38 Okla.L.R. 447, 468 (1985) ("it is difficult to see how this letter is anything other than an unrequested advisory opinion"). Indeed, even in states, such as New Hampshire, which allow their supreme courts to issue advisory opinions, their use is normally limited to situations wherein one of the other branches of government has made a request for the court's advice. That obviously was not the situation with respect to the decision issued by the court in In re Pa. C.S. § 1703.

The legislation passed by a vote of 180-12 in the house of representatives and by a vote of 42-5 in the senate. See Bologna, supra note 48, 71 Temple L.R. at 729.

168.

Suspension of the Capital Unitary Review Act and Related Sections of Act No. 1995-32 (SSI); and Amendment of Chapter 1500 of the Rules of Criminal Procedure, 548 Pa. CCXXXV (1997).

169.

722 A.2d 676 (Pa. 1999).

170.

Id. at 678-79.

171.

Id. at 678.

172.

Id. at 679-80.

173.

See, e.g., Steel Co. v. Citizens for a Better Environment, 523 U.S. 83, 101-02 (1998); Raines v. Byrd, 521 U.S. 811, 828-29 (1997); Lewis v. Casey, 518 U.S. 343, 353 n.3 (1996). Justice Powell explained the important relationship between standing requirements and the separation of powers doctrine in his concurring opinion in United States v. Richardson, 418 U.S. 166 (1974):
Relaxation of standing requirements is directly related to the expansion of judicial power. . . . [R]epeated and essentially head-on confrontations between the life-tenured branch and the representative branches of government will not, in the long run, be beneficial to either. The public confidence essential to the former and the vitality critical to the latter may well erode if we do not exercise self-restraint in the utilization of our power to negative the actions of the other branches. We should be ever mindful of the contradictions that would arise if a democracy were to permit general oversight of the elected branches of government by a nonrepresentative, and in large measure insulated, judicial branch.Id. at 188 (Powell, J., concurring).

174.

Randolph's proposed Council of Revision, which would have required that every law passed by the legislature be automatically reviewed by the judiciary before it could take effect, was repeatedly rejected by the Framers of the United States Constitution. See Richardson, 418 U.S. at 189 n.9 (Powell, J., concurring) (citing 1 J. Goebel, History of the Supreme Court of the United States 204 (1971) and 1 M. Ferrand, The Records of the Federal Convention of 1787, p. 21 (1911)).

This sampling of cases also shows that the outcomes achieved under systems in which the judiciary has the final say over procedural and evidentiary law are not predictable along traditional liberal-conservative lines. Most people would likely view the statutes at issue in Ammerman (expanding protection for news gatherers and hence promoting the free flow of information), Clemente (enlarging the discovery rights of criminal defendants), Joseph (providing a fresh judicial perspective for habeas corpus petitioners), and Pa. C.S. § 1703 (enhancing the openness of judicial rule-making proceedings) as liberal-leaning; whereas the statutes at issue in Sypult (removing protection for otherwise privileged communications in cases of child abuse), Purrington (denying bail pending appeal in certain cases), Wharton and Sorrell (granting prosecution the right to a jury trial), and CURA (streamlining death penalty review proceedings) would generally be viewed as conservative-leaning. Yet all of these statutes were struck down by the courts on the grounds that they represented unwarranted intrusions by the legislature into the realm of the judiciary.

190.

This hypothetical assumes that the statutory grant of rule-making authority contains a provision which states that statutes in conflict with procedural rules adopted by the court are no longer operative. Many, but not all, states which grant statutory rule-making authority to their supreme courts include such a provision within their statutes.

The Winberry court recognized that judicial rule-making involves the exercise of legislative-like power. See 74 A.2d at 412. Other courts also have acknowledged as much. See, e.g., O'Coin's, Inc. v. Treasurer of County of Worcester, 287 N.E.2d 608, 611 (Mass. 1972) ("Inherent authority of the judiciary is not limited to adjudication, but includes certain ancillary functions, such as rulemaking and judicial administration which are essential to the courts' carrying out their constitutional mandate."); Ginnavan v. Silverstone, 229 A.2d 124, 126 (Md. 1967) ("The Maryland Rules of Procedure, within their authorized scope, are legislative in nature.").

See Kay, supra note 35, 8 Conn.L.R. at 40. The New Hampshire Supreme Court long ago recognized this fundamental distinction between the judicial and legislative powers:
A marked difference exists between the employments of judicial and legislative tribunals. The former decide upon the legality of claims and conduct; the latter make rules, upon which, in connection with the constitution, those decisions should be founded. It is the province of judges to determine what is the law upon existing cases. In fine, the law is applied by the one, and made by the other. To do the first, therefore, to compare the claims of parties with the laws of the land before established, is in its nature a judicial act. But to do the last, to pass new laws for the regulation of new controversies, is in its nature a legislative act; and if the rules interfere with the past, or the present, and do not look wholly to the future, they violate the definition of a law, "as a rule of civil conduct;" because no rule of conduct can with consistency operate upon what occurred before the rule itself was promulgated.Merrill v. Sherburne, 1 N.H. 199, 204 (1818) (emphasis added).

The only limitation on the tenure of New Hampshire judges is that they must retire at age 70. N.H. Const. pt. 2, art. 78.

203.

New Jersey is the state which comes closest to the system of lifetime judicial appointments found in Massachusetts and New Hampshire. New Jersey judges are appointed by the governor, with the advice and consent of the senate, for an initial term of seven years. At the conclusion of this initial term, a judge must be reappointed in the same fashion. If reappointed, the judge then enjoys tenure during good behavior to age 70. N.J.Const. art. VI, § 6, para. 1, 3.

204.

I do not for a moment suggest that the way to ameliorate the problem of lack of accountability in judicial rule-making is through imposition of term limits on judges. In my view, life tenure is crucial to preserving the independence of the judiciary in its adjudicative responsibilities. However, there can be no doubt that the existence of life tenure makes the New Hampshire judiciary's assertion of supreme authority over rule-making even less justifiable than it is in states which appoint or elect judges for renewable terms.

205.

Kay, supra note 35, 8 Conn.L.R. at 36.

206.

In re Proposed Rules of Civil Procedure, 139 N.H. 512 (1995).

207.

Id. at 519.

208.

347 U.S. 483 (1954).

209.

I am the first to concede that a judge is far more than simply an umpire. Still, in distinguishing between the legislative and judicial functions, a baseball analogy does seem appropriate: the umpire (judge) must have the final say in calling balls and strikes; but the baseball league (the legislature) is entitled to the final say in setting the strike zone. See also Hall v. State, 539 So.2d 1338 (Miss. 1989), where, in a scathing dissent from the majority's holding that a statutory hearsay exception was unconstitutional because only the Mississippi Supreme Court has the power to adopt rules of evidence, Justice Hawkins wrote:
It is a quixotic idea that the umpire of a game should be vested with the exclusive authority to prescribe the rules. This ignores the players, the ones who ultimately win, as well as the ones who must suffer the misery following losing. They are the ones directly affected, not the umpire. The players' voice in decision-making on rules is the Legislature.Id. at 1363.
The Hall case is a prime example of judicial excess in the assertion of rule-making power. The majority held that the supreme court had exclusive power to make rules of procedure and evidence despite the fact that article 4, § 90 of the Mississippi Constitution specifically states:
The legislature shall not pass local, private, or special laws in any of the following enumerated cases, but such matters shall be provided for only by general laws, viz:
(s) Regulating the practice in courts of justice.

Id. at 218 (quoting United States v. Klein, 13 Wall 128, 146, 20 L.Ed. 519 (1872)). The issue in Klein was the effect of a Presidential pardon on a claim by the executor of a Confederate sympathizer to recover the value of property seized by the United States during the Civil War. In a prior case, the Supreme Court had held that proof of a pardon satisfied a claimant's statutory burden of showing that he had not given aid or comfort to the rebellion, and thus was eligible for compensation. While Klein's case was pending, Congress passed a statute providing that a pardon would have exactly the opposite effect, i.e., it would be taken as proof that the claimant had in fact aided the enemy, and thus require that his case be dismissed. The Supreme Court held that the statute was unconstitutional because it purported to "prescribe rules of decision to the Judicial Department of the government in cases pending before it." Id. Whether Klein's holding has any continuing validity is doubtful in light of later cases, which have made it clear that the prohibition it articulated "does not take hold when Congress `amend[s] applicable law.'" Plaut, 514 U.S. at 218 (quoting Robertson v. Seattle Audubon Soc., 503 U.S. 429, 441 (1992)). See also Miller v. French, 120 S.Ct. 2246, 2259 (2000).

See Plaut, 514 U.S. at 241 (Breyer, J., concurring in the judgment) (concluding that statute at issue violated separation of powers doctrine because it represented impermissible attempt by Congress "to apply, as well as to make, the law") (emphasis in original).

141 N.H. at 574. But while the proposed legislation sought to circumscribe the trial judge's discretion, it did so only to a limited degree. That is, the presumption in favor of admissibility created by HB 1549 was a rebuttable one. The judge was still required to consider, in each case, whether the presumption in favor of admissibility was "substantially outweighed by the danger of unfair prejudice to the defendant." This language, in essence, incorporates the N.H.R.E. 403 balancing test, and clearly would have required that the trial judge make admissibility determinations under the proposed statute on a case by case basis, in largely the same manner as they have always been made under Rule 403.

220.

To cite just one example, consider N.H.R.E. 609. It provides that the credibility of a witness may be impeached based upon the witness' conviction of a misdemeanor offense only if the offense "involved dishonesty or false statement." In light of this rule, the supreme court surely would not countenance a trial judge's exercise of "discretion" to admit for impeachment purposes, say, a misdemeanor assault conviction, no matter how strongly the judge may have believed that his ruling was "fair."

221.

The Random House Dictionary of the English Language, p. 1680 (2d ed. 1987).

222.

Despite statements in the PSAE case suggesting that the admission of propensity evidence would violate a defendant's right to due process, there is reason to question whether the supreme court would have invalidated HB 1549 on this ground had the court been squarely faced with the issue in the context of a "real" case. In this regard, the circumstances surrounding adoption of analogous federal legislation are significant. As noted previously, see note 68 supra, after Congress enacted into law Federal Rules of Evidence 413-415, it referred these rules to the Judicial Conference for its comments and recommendations. The Judicial Conference, a body comprised largely of federal judges, was nearly unanimous in recommending that these rules be repealed (the only dissenting voice being that of the representative of the Department of Justice). Yet when Congress declined to follow this recommendation and the rules went into effect, every federal court which thereafter addressed their validity has upheld them against due process or other constitutional attack. See United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998) (citing Spencer v. Texas, 385 U.S. 554 (1967)); United States v. Castillo, 140 F.3d 874, 879-82 (10th Cir. 1998); United States v. Larsen, 112 F.3d 600, 604-05 (2d Cir. 1997). See also People v. Falsetta, 986 P.2d 182, 193 (Cal. 1999) (upholding state statute similar to Federal Rules 413-15); butsee State v. Burns, 978 S.W.2d 759 (Mo. 1998).
It also must be noted that HB 1549 was at least arguably narrower in scope than Federal Rules of Evidence 413-415. Unlike the federal rules, which allow the admission of "similar act" evidence in sex-related cases "for its bearing on any matter to which it is relevant," HB 1549 would not have allowed such evidence to be admitted for the purpose of showing the defendant's character. On the other hand, it can be argued that HB 1549's definition of "motive" ("a desire to engage in sexual activity with a certain victim or type of victim, or a desire to control or harm others through sexual assault") is so broad as to be effectively indistinguishable from the concept of propensity.

See Porter v. State, 421 A.2d 985, 992 (Md.App. 1980) (Moylan, J., concurring) ("At the sub-constitutional level, it is not the business of the judicial branch to make or to suggest policy, but only to implement and interpret the policy as made by others."); Ledewitz, supra note 160, 32 Duq.L.R. at 416-17 ("There is no hint in section 10 [of the Pennsylvania Constitution] that important matters of policy are to be decided by virtue of the rulemaking power. If not of constitutional dimension, such decisions should be left to the legislature or to the people.").

225.

See Gallant, supra note 160, 38 Okla.L.R. at 475 ("Important nonconstitutional policy decisions are no less policy decisions because they concern the workings of the courts.").

226.

N.H. Const. pt. I, art. 14.

227.

U.S. Const. amend. XIV; N.H. Const. pt. 1, art. 15. See also Miller, 120 S.Ct. at 2260 (noting that due process concerns would be implicated by statute that created such a short time limit for judicial action as to deprive litigants of a meaningful opportunity to be heard).

228.

In addition, while the separation of powers doctrine should not be construed to prevent the legislature from asserting supremacy over procedural and evidentiary law, the doctrine obviously does place some limitations on the extent to which the legislature (or the executive) can intrude into the operations of the judiciary. See Levin & Amsterdam, supra note 51, 107 U.Pa.L.R. at 32 (describing "the area of minimal functional integrity of the courts" into which the other branches may not intrude); Kaplan & Greene, supra note 42, 65 Harv.L.R. at 251 n.75 (suggesting that there can be no legislative override with respect to matters involving "the essence of the operations of the courts as such").

229.

Resolution 100 of the 1984 New Hampshire Constitutional Convention proposed that article 73-a be amended to read as follows:
The chief justice of the supreme court shall be the administrative head of all courts. He shall, with the concurrence of a majority of the supreme court justices, make rules governing the administration of all courts in the state and the practice and procedure to be followed in all such courts. The rules so promulgated shall have the force and effect of law if not inconsistent with statute.
Martin L. Gross was again a delegate to this Convention, and was a co-sponsor of Resolution 100. Because the 1984 Convention took place fresh on the heels of the supreme court's LaFrance decision, there was much comment during the debates about that case. However, in his remarks during the floor debate on the resolution, Delegate Gross argued forcefully that the matter of "guns in the courtroom" was "a side issue . . . which unfortunately has tended to befog the real issue, whether the Legislature is to continue to have the power to step in and pass legislation reforming court procedures when necessary." Journal of the 1984 Constitutional Convention at 236. He went on to point out that the New Hampshire Legislature had a long and proud history of enacting necessary court reform measures, "whether it was reforming the so called deadman's rule, or providing a simple way to file a brief statement of defense, or more recently, changing the burden of proof about insurance coverage, or the rule of contributory negligence." Id. Although the majority of delegates to the 1984 Convention voted in favor of Resolution 100, it did not attain the 3/5 majority needed for passage, and was defeated. Id. at 249.
During the 2000 legislative session, Constitutional Amendment Concurrent Resolution 2 (CACR 2) was passed by the New Hampshire House of Representatives, but was defeated in the Senate. This resolution would have amended the last sentence of article 73-a to read as follows: "The rules so promulgated shall have the force and effect of law; provided, however, that such rules may not be inconsistent with statutes."

230.

South Dakota is representative of the states in this category. The pertinent provision of its constitution states:
The Supreme Court shall have general superintending powers over all courts and may make rules of practice and procedure and rules governing the administration of all courts. The Supreme Court by rule shall govern terms of courts, admission to the bar, and discipline of members of the bar. The rules may be changed by the Legislature.
S.D. Const. art. V, § 12.

231.

See Kay, supra note 35, 8 Conn.L.R. at 42.

232.

Alaska Const. art. IV, § 15 (court rules may be changed by two-thirds vote of the members elected to each house of the legislature); Fla. Const. art. V, § 2(a) (court rules may be repealed by two-thirds vote of each house of the legislature); S.C. Const. art. V, § 4A (court rules submitted to judiciary committee of each house become effective in 90 days unless disapproved by a concurrent resolution of both houses adopted with concurrence of three-fifths of the members of each house present and voting); Utah Const. art. VIII, § 4 (court rules may be amended by two-thirds vote of all members of both houses of the legislature). During the 1984 New Hampshire Constitutional Convention an amendment to Resolution 100 was proposed that would have required a two-thirds vote of each house of the legislature to override a court rule. The amendment was defeated, seeJournal of the 1984 Constitutional Convention at 248, but, as noted earlier, the main resolution also failed for lack of the requisite three-fifths majority vote. See note 229 supra.

233.

See N.H. Const. pt. 2, art. 44 (bill vetoed by governor requires two-thirds vote of each house of legislature to become law).

234.

See note 120 supra.

235.

See Levin & Amsterdam, supra note 51, 107 U.Pa.L.R. at 35 ("at its narrowest plausible definition `administration' remains a field so wide that to entrust it to the exclusive power of the judiciary is palpably unwise").

236.

Of course, even under the proposed amendment, questions may arise as to whether a particular legislative enactment does infringe upon the adjudicative responsibilities of the courts. To give an obvious example, if in the name of "administration" the legislature were to attempt to assert authority to decide which judges should be assigned to hear particular cases, this would surely be regarded as tantamount to an effort to control the outcome of the cases and would be held to violate the separation of powers doctrine. On the other hand, the legislature's power over court administration clearly would allow it to establish bodies independent of the supreme court to regulate the conduct of judges and lawyers.

237.

In addition, if the legislature determined, subsequent to the enactment of proposed RSA 490:8, that the supreme court was engaging in a pattern of inappropriate rule-making in derogation of desirable pre-existing statutory law, there would be nothing to prevent the legislature from simply repealing that portion of the statute which allows court rules to supersede pre-existing law.

238.

The statute would make the Right to Know Law applicable only to the supreme court's rule-making functions. The court would not be required to hold case conferences or other aspects of its adjudicative functions in public.

239.

RSA 541-A:23, IV (1997).

240.

Unlike the federal statute, the legislation I propose does not create a special category for rules dealing with privileges. There is no indication that the New Hampshire Supreme Court has ever contemplated the adoption of novel or controversial evidentiary privileges, and I therefore see no reason for the legislature to treat rules dealing with this topic different from any other rules.

241.

This scenario might occur, for example, in circumstances where the legislature did not initially find a proposed rule objectionable, but was later faced with a court decision in which the rule had been applied in a manner which the legislature had not contemplated, and with which it disagreed. The possibility that this kind of situation could occur is also what led me to reject as a model for the proposed amendment to article 73-a those state constitutions which provide that legislative override of a court rule is allowable only within a certain limited time. See, e.g., Mont. Const. art. VII, § 2 (rules of procedure adopted by supreme court "shall be subject to disapproval by the legislature in either of the two sessions following promulgation"). A constitutional provision to this effect would likely be interpreted to mean that, if the legislature did not act within the prescribed time, not only would the rule take effect but the rule could not thereafter be repealed or modified by legislation.

242.

See Geyh, supra note 64, 68 Temple L.R. at 1076 ("An independent judiciary is a good thing. Without it, fair and principled administration of justice is difficult, if not impossible. An unaccountable judiciary, on the other hand, is not a good thing. And when a state constitution, such as Pennsylvania's, isolates its judiciary by rendering its operations completely immune to legislative oversight, the line between independence and unaccountability is crossed.").